Thankfully, barristers are prohibited from conducting correspondence in their own name on behalf of anyone else (see NSW Barrister’s Rule 17(b)). As a result I can’t poke fun at judicial comments about aggro correspondence by counsel. However, it would appear from Justice Palmer’s comments in Arena Management Pty Ltd (Admin App) (Rec & Mgrs App) & Anor v Campbell Street Theatre Pty Ltd (No 2) [2010] NSWSC 1230 that some of us can’t help ourselves in our written submissions:

“[14] There is another aspect….which calls for comment. [Barrister 1], in his written submissions, describes [Barrister 2]’s submission as to failure to plead fraud as “errant nonsence” – presumably meaning “arrant nonsense”. The use of such language by counsel is to be deplored. Robust advocacy, which is commendable, does not license rudeness, which is not. The use by counsel of intemperate language, particularly when there is, in fact, nothing calling for adverse comment, suggests a degree of emotional involvement which counsel have a duty to avoid if they are to discharge their duties to the client and to the Court with proper professionalism…”

For the avoidance of doubt, we all know from that arrant means “downright; thorough; unmitigated; notorious”, while errant means: “deviating from the regular or proper course; erring; straying” or “journeying or traveling, as a medieval knight in quest of adventure; roving adventurously”.

Shout out to Shane Paterson of HWL Ebsworth for telling me about this case.

Creative commons acknowledgment for the photograph.



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