NSW Can a single letter difference in legal name result in incorrect name on summons?

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faustus

Well-Known Member
26 November 2016
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I have a question about the correct legal name of an individual in a summons.

Suppose an organisation has told me that the name of an individual is John Peters but in reality the legal name of the individual is John Peter i.e. difference is merely the letter s.

If I served a summons to the organisation for a John Peters, would it possible for that organisation (acting totally in bad faith) to claim that there is no such individual by the name John Peters, precisely because they did not want the individual John Peter to provide evidence?
 

Tim W

Lawyer
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28 April 2014
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As a general principle, the onus is on an applicant to Get It Right.

However, there is also a general principle that,
if it is otherwise clear to whom the document refers,
then a mere typo will not be fatal to its validity.

However, you will certainly encounter amateurs and lunch room lawyers
on boards and committees of entities like sports clubs, community groups, etc,
who will tell you that it is, and resist it on that basis.
Petty word tricks are not the bullets that American TV would have you believe.

Clarify for me - it is your suspicion that somebody from the entity you're dealing with
has deliberately given you an incorrect name?
Or have you made en error in the summons, upon which they rely
to resist it?

Prior to making this post, I read back over some of your earlier posts.
If you don't already have one, then it's time that you got yourself a lawyer.
 

faustus

Well-Known Member
26 November 2016
29
2
124
Clarify for me - it is your suspicion that somebody from the entity you're dealing with
has deliberately given you an incorrect name?

I suspect that both the entity and their lawyers have done this deliberately.

Essentially, I had an encounter with the agency where I was coerced into doing something by administrative staff. In response to civil proceedings, an affidavit was filed by someone with whom I have never spoken in my life. Quite literally, I have no idea who this person is. But this is the peculiar thing: in his affidavit, he also mentions the name of the only person who I did interact with.

Why would they do that? I concluded that the only possible explanation is that the person with whom I actually dealt does not want to lie about what he did -- they swapped him out with someone who was willing to lie. And if someone doesn't want to lie, then they are the perfect person to summons.

But I noticed something: not only is his affidavit a complete fiction, but the lies are ridiculously over the top, almost as though to goad me. In other words, he is not lying in a way that makes sense. So I reasoned to myself, no normal person would file a perjurious affidavit while simultaneously providing the name of the person who could incriminate them in that.

I concluded that the intention was for me to summons this individual only learn he did not exist. I concluded the name of this individual was incorrect. I was right; his surname does not have an s on the end. How I learned this is rather amusing.

I just wanted to know if my thinking is correct -- whether one letter would make a difference.

My goal was to file an summons for the incorrect name with the expectation of it failing. I figure if someone does not want to lie, then if I do summons his legal name, he will be pressured into lying, which is of no use to me. I have a strong case already and I do not actually need this person anymore.

Prior to making this post, I read back over some of your earlier posts.
If you don't already have one, then it's time that you got yourself a lawyer

It is too late for me to get a lawyer and I regret it now.
 

Rob Legat - SBPL

Lawyer
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16 February 2017
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Filing process incorrectly on purpose is an abuse of process, and you shouldn’t get any help with that course of action around here - definitely not from lawyers. We’re all officers of the court first and foremost.
 

faustus

Well-Known Member
26 November 2016
29
2
124
Filing process incorrectly on purpose is an abuse of process, and you shouldn’t get any help with that course of action around here - definitely not from lawyers. We’re all officers of the court first and foremost.

If I file a summons for the name provided in an affidavit submitted by the respondent and the respondent then wishes to claim that the individual in the summons was incorrectly named, is there not probative value in that? Because the alternative is for me to use what I think is the person's correct legal name, only to be told the individual in the summons was incorrectly named. This was the dilemma I did not know that it would be considered an abuse of process but I can kind of see your point.

If it makes a difference the lawyers and respondent acknowledge the individual's real name, know that I suspect they did this on purpose and are claiming it was a transcription error. I have no intention of doing this anymore because it would not work.

This is more for my peace of mind -- am I being paranoid or is it possible that this was their intention? They are the type of people who would do this sort of thing.
 

Rob Legat - SBPL

Lawyer
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16 February 2017
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Whether this is a big deal or not may come down to the circumstances and how it all plays out. On one hand, an affidavit is a sworn statement and fundamental errors can be grave. On the other, they can be waived off in they're inconsequential and nothing 'turns on them' as Courts like to say.

Often, the proof of an affidavit is in contesting it (usually via cross-examination). Let's say you get this person on the stand and (to use your example) you ask them to confirm their name is 'John Peters' per the affidavit. If they say, "No, my name is John Peter. That's a typographical error", there might some comment from the judge about lax solicitors drafting affidavits and move on. However, if he states it is John Peters, you challenge that, and it's subsequently found he's lying - then that's a potential perjury charge.

Any lawyer involved in an intentional fraud upon the court is risking the wrath of the entire system. Even a failure to properly verify and identify the person making the affidavit (so not intent, but not doing their job properly) runs the risk of professional misconduct. A lawyer's duty to the courts and the administration of justice is stringently policed.