WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING? MICHAEL FELLOWS & TERRY BETTS WHAT HAPPENS WHEN YOU DISCOVER A PARTY HAS BEEN LYING?

Structure of this presentation The ethical rules The court rules Professional consequences Cost consequences War stories

Eccentric barrister

The client has lied The 4th day of trial – during afternoon tea “I’m sorry Mr. Fellows, I forged my husband’s signature on that document”

Barristers Rule 78 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.

Solicitors rule 15 – “lie or falsified” Other rules 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.

Solicitors rule 15 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”

“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.

Consequences for the lawyer 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 ….

Parker & jacks (2009) 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

These obligations also apply in negotiation 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

Arguably more eccentric barrister

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.

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.

You can always tell an instructing solicitor

Some decisions 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

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

Practical considerations – part 2 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?

The END