Your client’s star witness has lied in an affidavit filed in court – what do you do?
By Michael Dolan.
You are acting for an international company which is the applicant in a Federal Court commercial dispute regarding patent rights and you have filed in court and served an affidavit prepared by you sworn by your client’s Australian manager. The respondent’s solicitors have contacted you to advise that certain parts of your client’s affidavit are untrue and they provide you with clear documentary evidence supporting their position. What do you do?
As an officer of the court you have a paramount duty to the court and the administration of justice. You cannot allow evidentiary material prepared by you to remain on the court file and be used in the proceedings once you discover parts of it to be untrue. At the time you filed and served the affidavit you did so on the instructions of your client’s Australian manager in good faith.
In the circumstances outlined you must immediately seek instructions from your client and seek its agreement to you immediately notifying the court and the other side provided that your client confirms the accuracy of the assertions of the respondent’s solicitors.
This was a situation which came to light in a decision earlier this year in the Federal Court of Australia. (1) Once the applicant’s solicitor became aware of the false statements in the affidavit she informed the court and the respondent’s solicitors in accordance with her paramount ethical duty.
The solicitor did so in accordance with Rule 20.1 of the Legal Profession Australian Solicitors’ Rules 2015. (2)
The Judge stated:
“The circumstances in which the proceedings were dismissed were that the solicitors for the applicant notified my associate on 21 February 2019 by email that the applicant had recently become aware that certain parts of the evidence of Mr Foster in his affidavit dated 29 January 2019 were not truthful.
The solicitors for the applicant said they notified the Court pursuant to rule 20.1 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) and apologised unreservedly to the Court and the respondents.
That subrule provides:
20 Delinquent or guilty clients
‘20.1 A solicitor who, as a result of information provided by the client or a witness called on behalf of the client, learns during a hearing or after judgment or the decision is reserved and while it remains pending, that the client or a witness called on behalf of the client:
20.1.1 has lied in a material particular to the court or has procured another person to lie to the court,
20.1.2 has falsified or procured another person to falsify in any way a document which has been tendered, or
20.1.3 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,
20.1.4 advise the client that the court should be informed of the lie, falsification or suppression and request authority so to inform the court, and
20.1.5 refuse to take any further part in the case unless the client authorises the solicitor 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 solicitor to do so but otherwise may not inform the court of the lie, falsification or suppression.’
The email said that neither the applicant, nor its legal representatives, had any knowledge or reason to suspect at the time of preparing the evidence that those parts of the evidence were untrue.”
The Judge accepted the evidence of the applicant’s solicitor who had sworn an affidavit “that at no stage prior to receipt of that material she had any knowledge or suspicion that any of the evidence given by Mr Foster was untrue.”
The Judge said “the Court has no reason to doubt the statements to the Court by the applicant’s legal representatives, including counsel, as officers of the Court, that they did not have any knowledge or reason to suspect at the time of preparing the evidence that the identified parts of the evidence were untrue.”
In relation to the untrue evidence, the Judge commented:
“In my opinion, the papers should be referred to the Commonwealth Attorney-General. In the circumstances of the present case, the executive branch should conduct an investigation in order to decide whether criminal proceedings should be brought in relation to the untrue evidence, the giving of false testimony. It should go without saying that false testimony is not to be tolerated and is viewed most seriously by the Court: it goes to the heart of the fair and just exercise of judicial power.”
- Wavetrain Systems AS v Next Generation Rail Technologies SL  FCA 350 (15 March 2019)
- Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015