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gordonc

Well-Known Member
10 September 2016
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Lawyers are required to comply with the ACL.

If a lawyer tells a load of BS to a court while accepting a fee for doing so, and the court comes to a decision based on the BS to the detriment of a party in the proceedings, it must follow that the court has been misled or deceived and a loss has occurred.

Q. Can the BS lawyer be sued under the ACL for misleading or deceptive conduct to a court of law?
 
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Tim W

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Depends.
Was it your lawyer, or the other party's?


Oh, wait, now I remember you.
On which basis, I now repeat my earlier statement that
from where i sit, you have no further straws at which to clutch.
 

gordonc

Well-Known Member
10 September 2016
43
9
149
Depends.
Was it your lawyer, or the other party's?


Oh, wait, now I remember you.
On which basis, I now repeat my earlier statement that
from where i sit, you have no further straws at which to clutch.


OH yes and I remember YOU.
The matter you were criticising me about, resulted in a $55,000 mediation payout and other concessions from my ex Trustee in Bankruptcy.

PLEASE STICK TO THE CURRENT ISSUE!

Having gained satisfaction from my ex Trustee, I am now suing (in the District Court) the process server that the trustee employed to trespass and take unlawful possession of the property.
This is where an unbelievable amount of BS is being led to the Court by the lawyer for the Process Server.
HENCE why I asked... Can the BS lawyer be sued under the ACL for misleading or deceptive conduct to a court of law?
 

Tim W

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Can the BS lawyer be sued under the ACL for misleading or deceptive conduct to a court of law?
Going only by what you have said here, missing facts missing, and
with any unstated ifs, buts, maybes, exceptions, unlesses, and
deceptively concealed details not allowed for,
I don't see how.

For one thing, if he's the other party's lawyer,
then you are not in a consumer relationship with her/him.
 

gordonc

Well-Known Member
10 September 2016
43
9
149
Section 18 (1) of the Australian Consumer Law (which is part of the federal Competition and Consumer Act) simply states that:
“A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive”.

It is my understanding that anyone who suffers a loss by the the prohibited conduct can sue.

Seafolly v Madden [2012] FCA 1346 it was held that disparaging comments made by Madden about a competitors designs were ultimately held to be misleading and deceptive.

Clearly the competitor wasn't in a relationship with Madden.
 
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Tim W

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Nah.

Evidence is given under oath.
On that basis, it is presumed to be given in accordance with that oath;
that is, true, correct, and complete.
You might say that evidence given under oath is (albeit rebuttably) presumed to be neither misleading nor deceptive.

Now of course, lying in court does happen.
And that being the case, where that's what you think happened,
the first question you can expect to be asked is along the lines of

"Why didn't you challenge this evidence in court,
when you had the opportunity, in the appropriate forum?"

You deal with evidence you disagree with by eiother seeking to have it excluded,
or by seeking to show it to be unreliable by bringing evidence of your own.

In terms of the relevance of the ACL, in the scenario you describe,
I do not see where you could be the one who was deceived.

A judgement against you is not a loss of the kind contemplated by the ACL.
On that basis, I do not see how you could have a remedy thereunder.
And certainly not in preference to effective cross at trial, nor ahead of appeal.
 

gordonc

Well-Known Member
10 September 2016
43
9
149
This is not about evidence, and I didn't say it was.

It's about BS lawyer's argument to the Court, which the Court is misled by and then follows, with the result of myself being damaged by way of costs.

It also has nothing to do with an appeal, because in this case the appeal judge followed the BS, so now its before the High Court.

I am not misled, it is the Court that is misled.

All I am trying to do on this forum is to draw an analogy with Seafolly v Madden [2012] FCA 1346 and many other authorities that follow the same principles, and apply those principles to the BS lawyer.
 

Rob Legat - SBPL

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You’d also need to get past the doctrine of advocates’ immunity. In very general terms this means that a solicitor or barrister cannot be sued for for negligence for actions taken during the course of litigation. While it’s a common law principle, the High Court has recently upheld the doctrine.

Misleading and deceptive conduct under the ACL is statutory, so it’s a bit oil and water - but there’s an arguable overlap.

The thing to remember is that court proceedings are adversarial, and evidence based (depending on the venue, this differs though). Except in isolated circumstances lawyers can’t provide evidence in a material respect themselves aside from in some very fundamental manners such as providing an affidavit of documents for legal correspondence - it’s a breach of their ethical requirements. An exception would be self representation.

All other evidence must be given by way of witness or tendered exhibits, and even those generally need witness comment.

The only facts which a lawyer can put to the court are either uncontroversial/publicly known, agreed/unchallenged, or the ones which they submit the court should accept (i.e those in dispute). The other party’s task is to put the alternate version of the facts to the court, and the court makes the findings of fact that it accepts. If there is a dispute about any fact, regardless of the above types, then it is for the aggrieved party to put their version to the court.
 

gordonc

Well-Known Member
10 September 2016
43
9
149
Thank you SB for alerting me to doctrine of advocates’ immunity.

Surely this must be contrary to the various rules around Australia regarding lawyer's "candour" and not to mislead the Court?

In my case, the BS lawyer knew full well that what he was saying was BS, and that is why he didn't have his client put it into an affidavit.

My point is that I have witnessed this sort of behaviour a lot in Queensland, and the current matter is absolutely blatant.

My thoughts are, after seeing what comes in the High Court, to file the matter in the Federal Circuit Court, and expose this behaviour for what it is.
 

Rob Legat - SBPL

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It's not inconsistent, and the reasoning probably lies somewhere in the nature of the duty owed. A lawyer's paramount duty is to the court and the administration of justice - not to their client or to the opposing party: to the court. Therefore it is the court which gets to make the call as to whether or not the duty is being properly discharged.

While the lawyer is immune to a legal suit for their advocacy, it doesn't mean that they're completely immune. Since you've mentioned Queensland I think I know what you're looking for - a complaint of professional misconduct under the Legal Profession Act. This covers a range of things, including misleading or dishonest conduct whether in or outside court.

To pursue this you will need to make a complaint to the Legal Services Commissioner (www.lsc.qld.gov.au), who will then make a determination of whether it is worth pursuing.

I doubt you could commence your own legal action. Advocates' immunity is just that: immunity. I would doubt you could argue that you have grounds to commence an action and, even if you did, it could probably be summarily thrown out.