WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?
description
Transcript of WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?
![Page 1: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/1.jpg)
MICHAEL FELLOWS & TERRY BETTS
![Page 2: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/2.jpg)
The ethical rules The court rules Professional consequences Cost consequences War stories
![Page 3: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/3.jpg)
![Page 4: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/4.jpg)
The 4th day of trial – during afternoon tea
“I’m sorry Mr. Fellows, I forged my husband’s signature on that document”
![Page 5: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/5.jpg)
A barrister who, as a result of information provided by the client or a witness called on behalf of the client, learns … that the client or a witness called on behalf of the client:(a) has lied in a material particular to the court or has procured another … ; or(b) has falsified or procured another … a document which has been tendered; or(c) has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court;must refuse to take any further part in the case unless the client authorises the barrister to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the barrister to do so but otherwise may not inform the court of the lie, falsification or suppression.
![Page 6: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/6.jpg)
Solicitors rule 15 – “lie or falsified”
Family Law Rules – obligation to positively volunteer facts and documents
If a client wishes not to disclose a fact or document that is relevant to the case, a lawyer has an obligation to take the appropriate action, that is, to cease to act for the client.
![Page 7: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/7.jpg)
Perpetual Trustees v Cowley
“a solicitor is not merely a passionate and gullible mouthpiece for his or her client”
“obstinate and egregious refusal to comply with his duties to the court”
![Page 8: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/8.jpg)
Wife’s new partner had appeared as a litigant before the same judge some years earlier. Issues at trial includes wife’s ‘habit’ of choosing inappropriate partners.
Judge: I remember you Mr. Smith weren’t you convicted of rape?
A: YesJudge: Don’t you think you should have mentioned
that in your affidavit?A. I told the solicitor but he said I didn’t have to.
![Page 9: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/9.jpg)
Proceedings for professional misconduct
Costs – Family Law Rules 19.10
A person may apply for an order … against a lawyer for costs thrown away during a case, for a reason including ….
![Page 10: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/10.jpg)
Dispute re child support agreement Wife had made claim against former lawyers for
negligence in drafting that agreement – received damages award
Does not disclose those facts and the relevant documents – her new solicitor aware of that but does not disclose
Hearing re-opened and reheard Costs order against wife and solicitor for costs
thrown away Matter also referred to Legal Services Commissioner
![Page 11: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/11.jpg)
Barristers Rules 48, 49 Solicitors Rule 18 LSC v Mullins (2006) LSC v Garrett (2009)
“barristers cannot approach negotiation as if it were an honesty-free zone”
Justice Byrne in LSC v Mullins
![Page 12: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/12.jpg)
![Page 13: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/13.jpg)
Pagani: You own a block of flats at Hermit Park.Wife: [after a long pause] Yes I do and I
want my barrister to find out how you found out.
Monteith J: I don’t think Mr. Fellows can help you at the moment.
![Page 14: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/14.jpg)
FLA s. 117AB
(1) This section applies if:(a) proceedings under this Act are brought
before a Court; and(b) the Court is satisfied that a party to the
proceedings knowingly made a false allegation or statement in the proceedings.
(2) The Court must order that party to pay some or all of the costs of another party or other parties, to the proceedings.
![Page 15: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/15.jpg)
![Page 16: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/16.jpg)
Charles v Charles (2007) – preference for a version of events
Sharma & Sharma (2007)
Child Support Registrar v Kanavas (2010) – “must” mean no discretion
Polito and Polito (No 2) (2009) – careless and reckless evidence
![Page 17: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/17.jpg)
Make an early and valuable offer
To apply the section you or your opponent must prove the misleading statement was “knowingly” made
The law of diminishing returns
![Page 18: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/18.jpg)
Get it in writing – diary note, statement, affidavit Protect yourself Can Evidence Act s. 128 assist? Settle, settle, settle Fight fire with fire – can you show the other party
has also lied?
![Page 19: WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?](https://reader035.fdocuments.in/reader035/viewer/2022070409/56814516550346895db1d8c6/html5/thumbnails/19.jpg)