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Equality of Arms in Australia

I would be interested in comments on the following. It is my understanding the following is universally paramount:



3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.

With this in mind:

When a Judge allows a case to proceed in their court and a defendant is not at equity with a plaintiff, do the Judges breach their paramount duty, the administration of justice?


How is it when, a Judge allows a hearing to proceed when a defendant is not at reasonable equity with a plaintiff such that they do not have reasonable opportunity of presenting their case under conditions that do not disadvantage them, the judge is not in breach of their paramount duty, that being the administration of justice?

By extension, should a judge refuse to hear a case until a defendant has reasonable opportunity of presenting their case under conditions that do not disadvantage.

Post by Michael Sanderson (Author) arms

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Comments (25)
    • Brad Hill No a judge should not not (love a good double negative) hear a case due to a legal theory of equity at arms.

      This theory has been rejected by Australian courts.

      And it has nothing to do with a solicitors fundamental duties.

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      • Michael Sanderson (Author) Brad Hill the paramount duty being the ‘administration of justice’ applies as I understand to all officers of the court which includes judges.

        If a judge, say in the Federal Court was asked to declare on the question without the baggage of a plaintiff and defendant, how would you expect the judge would respond?

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        • Grame Thompson Brad Hill ">>>>"expeditious resolution of the real issues in civil proceedings at a minimum of expense."

          none of this high fallutin thesaurus stuff for us.. we just call it what it is.. "Quick and Cheap"

          Technocratic drafting at its finest! ;)

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          • Grame Thompson After some researching on Westlaw I have found one case that might be of relevance here

            "[2016] QCA 137" looks at Equality of arms fully, as well as the rest of what you are referring to here.

            you might want to read it as well as Aon

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            • Cameron McKenzie Read House v The King for judicial errors.
              The court must uphold natural justice & procedural fairness, but only up to a point. A party still has a responsibility to competently plea their case.

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              • Grame Thompson Michael Sanderson Why do you think a Judge is bound by Solicitor/Barrister rules in our adversarial system?

                Why do you think "administration of justice" is the ONLY duty? Let alone the paramount one? (read s56 of NSW Civil Procedure Act for the answer)

                And why do you keep trying to every time someone specifically answers your questions to then keep asking  the same one in a different way expecting a different answer?

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                • Michael Sanderson (Author) Grame Thompson I understand that judges are still members of the bar and are officers of the court and are still bound by this paramount duty, am I wrong?

                  I never said the ‘administration of justice’ was the only duty, however I understand it is the only paramount duty, am I wrong?

                  I included this in another answer:

                  The Civil procedure acts also state:

                  367 Directions
                  (1) The court may make any order or direction about the conduct of a proceeding it considers appropriate, even though the order or direction may be inconsistent with another provision of these rules.
                  (2) In deciding whether to make an order or direction, the interests of justice are paramount.

                  The word paramount is only used twice and only in the context of ‘justice’.

                  If a case is progressed in breach of the paramount duty that is the ‘administration of justice’ how is this not a breach of the paramount duty?

                  The question I have posed has not been answered, see original post.

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                  • Mishka Hudson Hi Michael, the following may be of interest to you;

                    The High Court of Australia has affirmed the vitality of traditional equitable doctrines, as supported by Muschinski v Dodds [1985] HCA 78, 160 CLR 583. http://www6.austlii.edu.au/.../au/cases/cth/HCA/1985/78.html

                    To see this upheld in practice you can review;

                    The High Court position, held in Australia Taylor v. Taylor (1979), as follows;

                    “…So far as material to this case s. 79A (1) of the Family Law Act 1975 (Cth) provides that "When, on application by a person affected by an order made by a court under section 79, the court is satisfied that the order was obtained by fraud, by duress, by the giving of false evidence or by the suppression of evidence, the court may, in its discretion, set aside the order . . .". Section 83 provides, inter alia, that "in proceedings with respect to the maintenance of a party to a marriage . . . if there is in force an order with respect to the maintenance of that party . . . the Court may . . . (c) discharge the order. . . ."

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