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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)) o 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 o 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
a) the nature and complexity of the proceeding;
b) the number of documents involved;
c) the ease and cost of retrieving a document;
d) the significance of any document to be found; and
e) any other relevant matter.
No searching required when unreasonable: 29.04(2) - the party must include in the affidavit of
documents a statement of -
a) The category or class of document not searched for; and
b) The reason why.
If it is considered unreasonable to search for certain documents, the party can simply state
why that search has not occurred
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