ROFESSIONAL CONDUCT – LAWYERS – Where first defendant’s solicitors failed to serve a supplementary medical report until day before trial – whether statements made to and correspondence with other parties in relation to report was misleading – solicitors subject to a duty not to make misleading statements to other parties – whether affidavit of defendant’s solicitor providing an explanation for the delay in service was misleading – duty of honesty owed by solicitors extends to avoiding misleading the Court – extends to conduct which is liable to mislead even where no false statement is made – duty breached even if Court is mislead temporarily – instructing solicitor failed to correct representations made by counsel which were likely to mislead the Court – solicitors subject to a duty to correct misleading statements
PRACTICE AND PROCEDURE – abuse of process – unconditional discontinuance proceedings in different court involving same substratum of fact – whether abuse of process operates against person not party to earlier proceeding – where earlier proceeding not decided upon merits – opportunity to make claims in earlier proceedings – oppression or unfairness
 The rule is that a judge should not receive any communication from anyone concerning a case that the judge is to decide, made with a view to influencing the conduct or outcome of the case. See, for example, Re JRL; Ex parte CJL  HCA 39; (1986) 161 CLR 342 (“Re JRL”) at 346 (Gibbs CJ) and 350 (Mason J), both citing Kanda v Government of Malaya  UKPC 2;  AC 322 at 337 and Reg. v Magistrates’ Court at Lilydale; Ex parte Ciccone  VR 122 at 127. In this context, communications made by one party without the knowledge of the other are governed by the principle that a judge should disqualify himself from hearing a matter where a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the issues in the case: Ebner v Official Trustee in Bankruptcy  HCA 63; (2000) 205 CLR 337 (“Ebner”) at 344; British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429;  HCA 2 (“British American v Laurie”) at 464-5, -; Re JRL at 351. This is the apprehension of bias principle.
Re: J.R.L.; Ex parte C.J.L.  HCA 39; (1986) 161 CLR 342
4. It is a fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other: see Kanda v. Government of Malaya  UKPC 2; (1962) AC 322, at p 337. McInerney J. stated the practice as it is generally understood in the profession in Reg. v. Magistrates’ Court at Lilydale; Ex parte Ciccone  VicRp 10; (1973) VR 122, at p 127, as follows:
“The sound instinct of the legal profession -judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.”
not confined to representations made by a party or the legal adviser or witness of a party. It is equally true that a judge should not, in the absence of the parties or their legal representatives, allow any person to communicate to him or her any views or opinions concerning a case which he or she is hearing, with a view to influencing the conduct of the case. Indeed, any interference with a judge, by private communication or otherwise, for the purpose of influencing his or her decision in a case is a serious contempt of court: see Halsbury’s Laws of England, 4th ed., vol.9, par.28 and cases there cited.
In conformity with the principle, every private communication to a judge made for the purpose of influencing his decision in a case is treated as a contempt of court because it may affect the course of justice (In re Dyce Sombre  EngR 498; (1849) 1 Mac & G 116, at p 122;  EngR 498; 41 ER 1207, at p 1209, per Lord Cottenham L.C.). Indeed, it is regarded as a serious contempt.
2. It is fundamental in judicial proceedings of the ordinary kind that during the conduct of a case a judge should not communicate privately with a party or a witness. If it can ever be justified, it certainly cannot without the prior knowledge and consent of all parties.
3 The question of fact which was determined giving rise to the dismissal of the proceedings was essentially whether a signature of the plaintiff on a deed of assignment of debt was or was not a forgery. Had the finding been that the signature was a forgery, then that would have left it open to the plaintiff to proceed with the claim for the debts in question. However, the finding of the District Court Judge was that the signature was not a forgery, but was a genuine signature of the plaintiff, and that accordingly the debts were no longer debts owing to the plaintiff, but rather debts owing to the assignee under the deed of assignment.
4 It seems that it was considered that leave was required because the District Court decision was given on the basis of determination of a separate question of fact. It is common ground before the Court today that in each case the decision did involve a matter at issue amounting to or of the value of $100,000 or more.
5 It may be noted that s.103 of the Supreme Court Act, dealing with appeals from single Judges of the Supreme Court, provides that:
An appeal shall, by leave of the Court of Appeal, lie to the Court of Appeal from a decision in proceedings in the Court on any question or issue ordered to be decided separately from any other question or issue.
6 One question that arises is whether there is a similar requirement for leave in relation to a decision of the District Court. There is in the District Court Act no provision similar to s.103. Appeal to the Supreme Court is provided by s.127 of the District Court Act which is in the following terms:
127(1) A party who is dissatisfied with a Judge’s judgment or order in an action may appeal to the Supreme Court.
(2) The following appeals lie only by leave of the Supreme Court:
(a) an appeal from an interlocutory judgment or order,
(b) an appeal from a judgment or order as to costs only,
(c) an appeal from a final judgment or order, other than an appeal: (i) that involves a matter at issue amounting to or of the value of $100,000 or more, or
(ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more, (d) an appeal from a judgment or order on an application for summary judgment under the rules.
(3) In any other case, an appeal lies as of right.
7 In my opinion, the decision in this case, even though it was arrived at as a result of a decision of a separate question, was a “judgment or order in an action” within the meaning of s.127(1) of the District Court Act. In my opinion, the decision did not fall within any of the categories in s.127(2) of the Act. It was not, in my opinion, an interlocutory judgment or order, nor was it a judgment or order on an application for summary judgment.
- In Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135;  NSWCA 44 at  –  Hodgson JA said, inter alia:
“The general requirement to avoid surprise means that material facts must be stated in such a way that the defending can understand the materiality of the facts, that is, how they relate to a cause of action.”