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A peer wanted his name inserted in the register of electors. His name was included and then removed. The peer appealed to the Court of Common Pleas. Counsel for the appellants appear to have argued that their case upon the basis that it had no merit purely for the purpose of getting the court to make a ruling.

Brett J said (page 253)

I quite agree that it is the duty of counsel to assist the Court by referring to authorities which he knows to be against him. But I cannot help thinking that, when the counsel has satisfied himself that he has no argument to offer in support of his case, it is his duty at once to say so, and to withdraw altogether. The counsel is master of the argument and of the case in court, and should at once retire if he finds it wholly unsustainable, unless he has express instructions from his client.

This reading is of historic interest. The BSB Code of Conduct (contained in the BSB Handbook) now governs the ethical behaviour of barristers.

 

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