QLD Is there a duty, or legal obligation of barristers and laywers?

Discussion in 'Family Law Forum' started by Imlost12345, 4 December 2018.

  1. Imlost12345

    Imlost12345 Active Member

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    without disclosing intimate facts -

    If a barrister and lawyer do not advice a judge of a letter that the lawyer received from the other party, and the other party (self represented with no legal support and only a high school diploma, with diagnosed adhd and social communications disorder) was so distressed and felt so under duress that they forgot they had sent the letter 17 days before the hearing in question and consented orders that were contrary to a family report and the kids are teenagers-

    and the whole of the interim orders were based upon
    1. the letter that the judge was not advised has been sent and received and
    2. that the person who sent the letter broke down and could not emotionally and physically continue in court

    Aside from the SR party forgetting such a key piece of evidence, what legal obligations do the other sides barrister and lawyer have when they know that the truth had not been put before the court (that being the letter they had received 17 days before the hearing)
     
  2. Rod

    Rod Well-Known Member
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    With so few details it is hard to know.

    Certainly the other side is under no obligation to you and not liable if they don't produce evidence you wanted to make known to the court. They are not mind readers and have a reasonable expectation that if you think the letter matters then you'll file it with the court.

    If you are not able to adequately represent yourself then you should have obtained legal representation.
     
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  3. Rob Legat - SBPL

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    Solicitors cannot:
    - Deceive, or knowingly or recklessly mislead the court. A 'misleading statement' does not extend to a failure to correct an error in a statement to the court by the opponent or another person.

    - Take unfair advantage of the obvious error of another solicitor or other person, if doing so would obtain a benefit for their client which has no supportable foundation in law or fact.

    While the second point may appear to fit your circumstances, it is unlikely to be the case. Solicitors' obligations to their clients are secondary only to their obligations to the courts. They don't extend to assistance with decisions about what evidence to produce.

    Lawyers do not need to produce every item of evidence in an adversarial hearing - only those they consider relevant to their client's case (unless they fall afoul of a rule, such as the first point) and complies with the relevant rules of evidence.

    If they were to assist their opponents with their cases, they would be failing to comply with their ethical duties. Barristers are no doubt in similar circumstances.

    I suggest you bring the information to the court's attention immediately (and copy of the other side) and fully inform the court of the circumstances for the late disclosure. You might get away with it as a self-represented litigant.
     
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  4. Cairns123

    Cairns123 Well-Known Member

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    Yep would be great in an ideal world, no money and unable to get legal aid makes legal representation rather inaccessible unfortunately.




     
  5. Cairns123

    Cairns123 Well-Known Member

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    Thanks, yes I filed an urgent application in a case with the letter annexed to the affidavit.
    Otherwise I guess it will all take its course and be heard next year. I will notify the associate and other side of the error and application tonight.
    Thanks again
     
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