Finch – apologised for citing fake cases
Judge Heather Riley of the FCFC has rejected an interlocutory application by litigant Jo-Anne Finch to restrain MinterEllison and Marc Feldman KC from acting against her.
Finch is a former manager of cosmetics distributor The Heat Group and has been in litigation against the group since an anti-discrimination application regarding the termination of her employment was dismissed by VCAT in 2010.
The latest turn of events concerns a grant of leave given to Finch to submit fresh claims under the Disability Discrimination Act1992(Cth).
She initially attempted to have MinterEllison removed by way of Rule 10 of the Australian Solicitors’ Conduct Rules, which deals with conflicts of interest where a practitioner is engaged against a former client. As Ms Finch was never a client of MinterEllison, her claim was promptly rejected.
She then claimed that two MinterEllison lawyers had perjured themselves in VCAT proceedings after relying on documents which they allegedly knew were misleading and deceptive.
In 2013 proceedings, Alishia Prpich and Brendan Avallone, filed three documents which turned out to be erroneous. Once they realised the problem, they undertook to correct the mistake.
There was no evidence that the presiding judge was improperly influenced by the error, and Ms Finch had insufficient evidence – commensurate to her serious claim that the firm had misled the court – to prove that the error was intentional.
She also submitted that, because MinterEllison was acting in a separate case against her, she was at an unfair disadvantage.
Referred to confidentially as the “Organisation X” case, Finch claimed that MinterEllison lawyers in both cases were sharing confidential information about her with one another.
She relied on Grimwade v Meagher [1995] 1 VR 446 and the principle that provides a narrow aperture for courts to restrain practitioners from acting against an otherwise unrelated litigant, when “a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice” required the restraint.
Before a hearing on this issue in March 2023, Finch submitted a list of 24 cases where she claimed MinterEllison lawyers had been restrained.
Judge Riley’s associate combed through all of these cases, only to find that they were entirely fabulated.
Some cases lifted their citations from real precedents and attached them to fake party names. Most cases never existed at all.
When asked by Judge Riley whether she had used ChatGPT to generate the case names and summaries, Ms Finch responded by claiming that “she did not know what ChatGPT was” and that she was provided with the cases “by a person who was rushing at the time”.
Her Honour emphasised that the court could have been led into a “substantial error” if an ex tempore judgement has been delivered in reliance on the pseudo-cases.
Finch apologised for misleading the court, and no punitive action was taken in recognition of her lack of representation. Presumably, a practitioner would have got a good bollicking for the same conduct.
During cross-examinations about the Organisation X matter, it was revealed that MinterEllison had ceased acting in the case.
Her claims that MinterEllison has a conflict of interest because it had acted against her in the VCAT, the Federal Courts and in the Organisation X case fell apart, as it is neither improper, nor uncommon, for solicitors to act against a particular person across multiple cases.
The court found that Grimwade did not support the Finch’s claim for restraint of the practitioners.