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Lawyer, counsel accused of giving ‘false, misleading’ medical evidence to court
A man’s allegations that a barrister and lawyer presented false and misleading evidence is reliant on him fronting $15,000 to a court.
Naomi Neilson
West Australian man James McGeough has relentlessly pursued disciplinary action against solicitor David James Kirchner and barrister Peter Gilbert McGowan over allegations the two presented false and misleading medical evidence to the state’s Supreme Court.
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Kirchner and McGowan crossed paths with McGeough while representing his brother with their deceased mother’s estate, during which evidence was put forward to support the brother’s submissions he could not work due to a medical condition.
The complaint was first dismissed by the Law Complaints Officer because it was “misconceived and lacking in substance”, which was supported by the State Administrative Tribunal on appeal.
The tribunal said there was “no material” to support the finding that either of the legal practitioners could be guilty of professional misconduct or unsatisfactory professional conduct.
McGeough appealed the finding in the Supreme Court on several grounds, including that the tribunal erred and denied him procedural fairness because it determined his matter on the papers, ignored relevant material, and had an incorrect interpretation of the law.
Before the matter could continue, McGowan submitted it would cost him an estimated $45,674 to defend himself and sought an order that McGeough provide security for costs in the sum of $25,000.
In considering whether to make the order, Justices Robert Mitchell and John Vaughan said that while McGeough is dissatisfied with the outcome of his complaint so far, “his personal interests are not substantially affected by the outcome of the appeal”.
Further, after a review of the tribunal’s original decision and submissions of the parties, they held a “provisional view” McGeough’s prospects of receiving a grant of leave to appeal and the appeal being allowed “are not strong”.
“In all the circumstances, we are satisfied that it is in the interests of justice to require the appellant to provide security for the third respondent’s costs of the appeal,” Justice Mitchell and Vaughan said.
However, they found the amount sought by McGowan was not appropriate and ordered the sum of $15,000 be paid instead.
“This is a case where the amount of security ordered against an appellant should not be greater than is absolutely necessary,” they said.
If McGeough fails to pay the amount to the court, McGowan has liberty for an application to dismiss the appeal.
