Every now and then, esteemed members of the legal profession do something that really makes Folklaw wonder what on earth they were thinking.
One such case has recently emerged in Victoria, with the team at Oldham Naidoo Lawyers showing that high intellect and ethics were - at least temporarily - nowhere to be found when they decided to launch a class action back in 2008.
The Age reports that Oldham Naidoo partner Daniel Oldham commenced a class action in the name of a Melbourne doctor, Hershal Cohen. The problem is that the good Dr Cohen had no idea that he was named as the lead plaintiff in the action.
This minor issue soon came to light, and Supreme Court Judge Jack Forrest has now been left to decide whether or not to throw the class action out, in light of the fact that Oldham admitted an "abuse of process" did indeed take place.
Speaking of the law firm's conduct, Judge Forrest said, "The ignorance is breathtaking" and mentioned that there might be future scrutiny of Oldham's activities by other legal bodies.
The class action was launched on 24 December 2008, just prior to the expiration of the six-year statute of limitations following the 2003 Victorian alpine bushfires which destroyed more than 1 million hectares of land. The class action was based on accusations that the government failed to adequately back-burn and reduce forest-floor litter in state parks, thus putting private property at risk.
The court heard that Oldham Naidoo Lawyers had discussed the possibility of becoming a group member in the class action with Dr Cohen, though they never suggested he would be named as the lead plaintiff.
The state government is seeking to have the action thrown out, with Peter Riordan SC suggesting that "the court would not want to see its processes abused".
"There are reasons why in a class action solicitors who may stand to gain substantial fees may ... file proceedings," Riordan said.
Riordan accused Oldham of deliberately concealing the lawsuit from Dr Cohen while knowing he did not own any property pertinent to the case, and deliberately misleading the court by claiming Dr Cohen had actually instructed him to act.
Stewart Anderson SC, acting for Oldham Naidoo, said dismissing the class action would cause overwhelming prejudice to class action group members because they would be unable to make a claim.
However, Riordan was quick to point out that no such people had actually come forward, apart from one man who now happens to live in Switzerland.
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