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http://www.lawyers.com.au/legal-articles/2011/3/22/judge-to-rule-over-doctored-lawsuit/

Judge to rule over doctored lawsuit

The Age

Tuesday March 22, 2011

By SELMA MILOVANOVIC LEGAL AFFAIRS REPORTER

A JUDGE will decide next month whether to throw out a class action over the 2003 alpine bushfires after a law firm admitted it lodged the lawsuit in the name of a Melbourne doctor without his permission.Oldham Naidoo Lawyers has admitted an "abuse of process" for naming the man as the lead claimant.Speaking of the law firm's conduct, Supreme Court judge Jack Forrest said "the ignorance is breathtaking" but ruled against Oldham Naidoo partner Daniel Oldham and solicitor Jordana Dymond being cross-examined. He said there might be future scrutiny of Mr Oldham's activities in the bushfire case by other legal bodies.The class action was lodged on Christmas Eve 2008, just before the six-year statute of limitations expired.The 2003 bushfires destroyed more than 1 million hectares of land. The class action accused the government of negligence over failing to adequately backburn and reduce forest-floor litter in state parks, which allowed the fire to spread to private property.The court heard that while Oldham Naidoo lawyers discussed the possibility of becoming a group member in the class action with Dr Hershal Cohen, they never suggested he would be the lead plaintiff.The state government wants the class action thrown out, with its counsel Peter Riordan, SC, saying 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," Mr Riordan said.Mr Riordan said Mr Oldham deliberately concealed the lawsuit from Dr Cohen while knowing he did not own any property relevant to the case, and deliberately misled the court when he claimed Dr Cohen had instructed him to act.Mr Riordan said the law firm's suggestion to substitute Dr Cohen with Robert Arnold, whose companies used to lease the Mount Buffalo Chalet from the government, was "perfectly inappropriate unless a security is put up" because Mr Arnold now lived in Switzerland.Stewart Anderson, SC, for Oldham Naidoo, said dismissing the class action would cause overwhelming prejudice to class action group members, because they would be "shut out" from making a claim.But Mr Riordan said no such people had come forward until now apart from Mr Arnold."The defendant is entitled to say 'enough's enough', that's what you've got going against you," Justice Forrest told Mr Anderson.But Mr Anderson said the case had not reached that point and Mr Arnold was now the potential lead plaintiff.

© 2011 The Age

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