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NSW Miscarriage of Justice in Australian Civil Law?

Discussion in 'Other/General Law Forum' started by Herman, 17 December 2014.

  1. Herman

    Herman Member

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    What is a civil law term that is equivalent to a miscarriage of justice? Or can the term be used to describe a grievous mistake of civil law?
     
  2. Tim W

    Tim W Lawyer

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    A bit of context will help us give you a better answer.
     
  3. Herman

    Herman Member

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    1) For example a SC asserts to a court that the defendant's evidence is something other the evidence as introduced in the defendant's affidavit, and the judge rules in the SC's favour without looking to see if the document is a carrot as the SC says, or is evidence as the defendant says. And in such cases it is not unknown for the judgement to include a paragraph noting that the issue which the un-read evidence was addressing as being the pivotal issue.
    2) For example a court in error rejects a defendant's evidence which causes findings that in error support a claim to strip the defendant of their home and of their means of support.

    Civil proceedings often create judgements that cause more injustice than any criminal conviction could do. For example if the plaintiff has been made a protected person by an aggressor who is now exploiting weaknesses in the NSW health and legal systems to exploit the plaintiff, and who is having the plaintiff medicated & falsely declared to be incapable as part of an inheritance or similar scheme, then the civil litigation is certain to be another mis-use of the court by the tutor/aggressor who is using any pretext they can to get the court to re-enforce their ascendancy over the plaintiff and over the defendant while not allowing the court an opportunity to test the real issues. Unfortunately such situations seem to still occur far too often in Australia, and in those cases the aggressor will always accuse the original carer (now the defendant) of mental defect and civil wrong doing typically costing the parties millions of dollars aside from the denial of their human rights as the aggressor play out their childhood feelings of rivalry and jealousy.
     
  4. Sarah J

    Sarah J Well-Known Member

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    Although counsel is not supposed to mislead the court (e.g. by incorrectly stating evidence), the reality is, we all make mistakes and when there are so many facts at hand, oftentimes conflicting facts, innocent misstating of facts may sometimes occur. Lawyers are human and therefore, make mistakes. This is why we have two sides. The other side acts as a check and balance. Given the reality of things, not all misstating of facts will constitute miscarriage of justice.

    Miscarriage of justice is when the court, after considering all the evidence and arguments, consider that a decision more favourable to the appealing party would have been issued had the error not been made. Hence, if the misstating of fact was so material to the determination that without the error, the appealing party would not have been convicted or would have been in a more favourable position, then there is miscarriage of justice and the appeal would be accepted.

    Similarly, if a judge refuses to admit a particular piece of evidence, and this evidence should have been admitted under evidence law, and this evidence, if admitted, would have significantly changed the outcome of the case and the outcome would, in all probability, be more favourable to the defendant, then there is miscarriage of justice and the defendant should appeal on this ground. However, the defendant should have brought it up during the original trial and notified the judge of the procedural irregularity.
     
  5. Herman

    Herman Member

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    So the term "miscarriage of justice" is applicable to civil matters of such a nature. Several references I've seen assert that it relates to wrongful convictions rather than wrongful judgements.
    BTW in the cases I'm thinking of there was no mistake, we know the SC had full knowledge before the litigation commenced because a third party sent the defendant a copy of the Plaintiff SC's advice in which he was asking the gov't to allow the Plaintiff's money be used for the litigation, and the SC gave advice on the issues which he then concealed from the court. In one of the resulting cases the SC convinced the court that the plaintiff did not have onus to prove the facts claimed, and instead that the defendant had the onus to disprove the plaintiff's claims (yes the French system is alive in NSW). Normally this would be objected to, but the judge had refused pro-bono Counsel permission to assist the defendant (who was also suffering a medical disadvantage) with these predictable results. It later turned out that a Mareva injunction forbidding the defendant from paying for defence had been in error but the injunction was still in place at time of the trial. These issues and the un-read evidence were listed in an appeal but after filing the grounds himself the appellant got help of a Counsel who attended private talks with the other side's SC, after which the Counsel abandon the appellant's grounds - as NSW rules allow Counsel to do independently of the client - so the above mentioned issues were not heard, and can never be heard as these were civil proceedings which have been perfected.
     
  6. Sarah J

    Sarah J Well-Known Member

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    The term means different things depending on the context. In theory, it may apply to civil cases as well, however, in criminal cases it is more pronounced because someone's freedom is on the line. In civil cases, not admitting evidence or wrongfully admitting incorrect evidence has less severe consequences so the term "miscarriage of justice" is seldom used. However, the end consequence is the sane (e.g. a new trial and setting aside of the former decision).

    If you have a problem with a particular solicitor or barrister and believe they have mislead the court in some way, you can complain to the law society or bar council.
     

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