4 The client has liedThe 4th day of trial – during afternoon tea “I’m sorry Mr. Fellows, I forged my husband’s signature on that document”
5 Barristers Rule 78A 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.
6 Solicitors rule 15 – “lie or falsified” Other rulesSolicitors rule 15 – “lie or falsified”Family Law Rules – obligation to positively volunteer facts and documentsIf 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.
7 Solicitors rule 15Perpetual 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”
8 “Suppression” and the whole truth? 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: Yes Judge: 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.
9 Consequences for the lawyer Proceedings for professional misconduct Costs – Family Law Rules A person may apply for an order … against a lawyer for costs thrown away during a case, for a reason including ….
10 Parker & jacks (2009)Dispute re child support agreementWife had made claim against former lawyers for negligence in drafting that agreement – received damages awardDoes not disclose those facts and the relevant documents – her new solicitor aware of that but does not discloseHearing re-opened and reheardCosts order against wife and solicitor for costs thrown awayMatter also referred to Legal Services Commissioner
11 These obligations also apply in negotiation Barristers Rules 48, 49Solicitors Rule 18LSC 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
13 Sometimes clients cannot be helped 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.
14 Costs consequences for liars 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.
16 Some decisionsCharles 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
17 Practical considerations – part 1 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
18 Practical considerations – part 2 Get it in writing – diary note, statement, affidavitProtect yourselfCan Evidence Act s. 128 assist?Settle, settle, settleFight fire with fire – can you show the other party has also lied?