#7377 - Topic 10 Collecting Evidence - Civil Procedure

TOPIC 10: METHODS OF GATHERING EVIDENCE

1. Discovery

a) Three steps to discovery:

i. Notice for discovery

• Discovery is limited to documents that are relevant to a fact in issue in the proceedings as disclosed by the pleadings (r29.02) This relevance test is upheld by R29.01.1

• It is a solicitor’s duty to be personally satisfied that the client is providing complete discovery. If the solicitor knows that the affidavit of documents is misleading, then they should withdraw.

• Where pleadings are closed, any of those parties by notice of discovery may require the other party served to make discovery of all documents which are or have been in that party’s possession and which, in accordance with 29.01.1 are required to be discovered, using Form 29A (29.02(2))

  • R29.01.1(3) includes any of the following documents of which the party giving discovery is aware, after a reasonable search, at the time discovery is given:

    • Documents on which the party relies

    • Documents that adversely affect the party’s own case

    • Documents that adversely affect another party’s case

    • Documents that support another party’s case

  • Section 26: Overarching obligation to disclose existence of all documents which are critical to the resolution of the dispute

    • Explanatory Memorandum: critical documents are those ‘that a party would reasonably be expected to have relied on as forming the basis of the party's claim when commencing the proceedings, as well as documents that the party knows will adversely affect the party's case.’

• Reasonable search: R29.01.1(5) in making a reasonable search a party may take into account-

  1. the nature and complexity of the proceeding;

  2. the number of documents involved;

  3. the ease and cost of retrieving a document;

  4. the significance of any document to be found; and

  5. any other relevant matter.

• No searching required when unreasonable: 29.04(2) – the party must include in the affidavit of documents a statement of –

  1. The category or class of document not searched for; and

  2. The reason why.

  • If it is considered unreasonable to search for certain documents, the party can simply state why that search has not occurred

• Relevance does not just mean relevant to the proceeding as framed by the P, but relevant to all the issues in the case. Compagnie Financiere et Commerciale de Pacifique v Peruvian Guano Co

ii. Making discovery – “affidavit of documents”

• What is a document?

  • s38 Acts Interpretation Act: "document" includes, in addition to a document in writing—

    1. any book, map, plan, graph or drawing;

    2. any photograph;

    3. any label, marking or other writing which identifies or describes anything of which it forms part, or to which it is attached by any means whatsoever;

    4. any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced there from;

    5. any film (including microfilm), negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced there from; and

    6. anything whatsoever on which is marked any words, figures, letters or symbols which are capable of carrying a definite meaning to persons conversant with them;

    1. Broad enough to cover information on computers e.g. the hard drive Grant v Marshall and r 29.12

    2. Includes deleted emails that may still be stored on a back-up system, Court may order a forensic expert be given access to a party’s computer for purpose of retrieving documents Sony Music Entertainment (Aust) Ltd v University of Tasmania [2003] FCA 724.

• PROCESS: You have 42 days to make discovery from notice (r29.03)

  • Within 42 days period, party receiving notice must make discovery by producing a sworn list of documents called an ‘affidavit of documents’. (r29.04)

  • Shall be in the form in Form 29B, to be sworn, filed with Court and a sealed copy served on requesting party.

• It must: (r29.04)

  1. Identify docs which are or have been in the possession of the party making the affidavit

  2. Enumerate docs in convenient order and describe each doc or group of docs, sufficiently to enable the doc or group to be identified;

  3. Distinguish between docs which are possession from those that no longer are. For any doc which used to be but is not longer in the possession:

     1. State when the party parted with the document; and

     2. The party’s belief as to what has become of it;

  4. Where claiming doc is privileged from production state sufficiently the grounds of the privilege

     • Valid claim to privilege: documents to which the privilege applies need not be produced for inspection and the party may refuse to answer interrogatories directed to privileged information.

     • Legal Professional Privilege: s118 Evidence Act which broadly corresponds to legal professional privilege at common law

       • The law Baker v Campbell.

         1. Confidential communications between a legal adviser and client (does not apply to communication with a solicitor acting outside their professional capacity or one that does not relate to confidential advice)

         2. Communications with a solicitor for the purpose of existing or anticipated litigation. Doesn’t need to have actually commenced so long as there is an apprehension of such litigation (real prospect as distinct from a mere possibility but it does not have to be more likely than not)

       • It will apply to communication which is made for the dominant purpose of obtaining legal services in existing or anticipated litigation in Australia or overseas S119 Evidence Act

       • This privilege is extended to pre-trial processes s131 Evidence Act

     • Privilege against self-incrimination: s128 Evidence Act

     • Privilege against exposure to penalties & forfeiture

     • Public interest

     • Evidence of settlement negotiations

     • Religious confession privilege

     • Journalists source

• Possession, custody or power

  • A party is only required to discover documents which are or have been in that party’s control in the manner contemplated by the rules.

  • The test is whether the document has been in the party’s ‘possession, custody or power’ r 29.01.1

    • Possession: the physical holding of the document resulting from the right to its possession (eg if the party holds the doc as an agent or bailee, they are in possession of the doc – can’t argue that as the non-owner they do not have to make the doc available for discovery)

    • Custody: the mere actual physical holding of a document, regardless of ownership, regardless of the right to possession (eg an employee holds a doc)

    • Power: the enforceable right to obtain possession or control of the document from the person who is holding it i.e. an enforceable right to obtain possession from another person

  • BUT discovery is not required it

    • If the party giving discovery reasonably believes the document is already in the possession of the party to which discovery is given – r 29.01.1(4)(a)

    • Additional copies of documents have already been discovered – r 29.01.1(4)(b)

• Restricted Discovery sometimes ordered to save costs

  • Court has power to order, at any time (r29.05):

    • Discovery by a party not required; or

    • Discovery limited to

      • Certain documents; or

      • Certain classes of documents; or

      • Certain questions in proceedings

  • Commercially sensitive information

    • If discovery is an abuse of process – i.e., not for legitimate reason but to get access to competitors information, it can be refused

    • But confidentiality alone will not ordinarily be sufficient reason to deny inspection by opposite party

    • Consideration should be given to whether action could proceed w/o confidential info being revealed beyond counsel, solicitors and nominated experts so confidentiality could be maintained Mobil Oil v Guina Developments (Vic CA)

iii. Inspection and use of documents

• Party can inspect & make photocopies of documents discovered. (r29.09(1))

• Can also inspect documents referred to in pleadings or particulars, also extends to any document referred to in another party’s originating process, interrogatories or answers, affidavit or notice (r29.10)

• The other party has 7 days to let applicant to know when to inspect. (r29.09(2))

• Must fill out a Notice to Produce (Form 29C) (r29.09(3))

b) Challenging Discovery – Is discovery is incomplete

• Where, at any stage, it appears to the Court that there are grounds for a belief that some document may be or may have been in the possession of a party, the Court may order that party to make and serve on any other party an affidavit stating –(r29.08(2))

  1. Whether that document is or has been in their possession

  2. If it has been but is no longer in that party’s possession, when the party parted with it and that party’s belief as to what has become of it

• Order can be made notwithstanding that the party has already made an affidavit of documents (r29.08(3))

c) Further Discovery

• Where a party fails to make discovery or fails to make sufficient arrangements for inspection or copying, or refuses to produce any document as required, Court may order the party to do such act as the case requires (r29.11)

• Court may order that a party make discovery of documents (or classes of document) to any other of those parties at any stage even if pleadings are not closed(r29.07)

d) Supplementary discovery

• A party who has made an affidavit of documents is under a continuing obligation to make discovery of documents with respect to documents of which the party obtains possession after making the affidavit (r29.15)

e) Permitted use of discovered documents

• Implied undertaking by each party not to use...