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Law Notes Litigation - Civil Procedure Notes

Gathering Info And Evidence After Trial Notes

Updated Gathering Info And Evidence After Trial Notes

Litigation - Civil Procedure Notes

Litigation - Civil Procedure

Approximately 162 pages

These notes aim to set out the relevant legal principles, and material facts from cases in order to demonstrate how those legal principles have been applied. Because of how heavily statute-focused this topic is, in some places I've extracted the relevant statute in the text or in a 'comment'.

At the beginning of each document on each topic, there is a table of contents (hyperlinked so you can navigate easily through the document), and also 'checklists', which you can use during revisions or ex...

Available here

The following is a more accessible plain text extract of the PDF sample above, taken from our Litigation - Civil Procedure Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Table of Contents

10 Gathering Information and Evidence After Initiation of Proceedings – Chapter 11 omit [11.260-80] 1

Introduction 11.10 1

1 DISCOVERY OF DOCUMENTS 11.20 – in UCPR rr 21.1-8 2

(iii) Discovery Process [11.7] – UCPR r 21.1-8 3

Technology and Discovery – 6

Case study for discovery: Priest v NSW 7

2 SUBPOENA TO PRODUCE [11.140] – UCPR rr 33.1-33.13 11

Setting aside a subpoena 14

3(a) NOTICES TO PRODUCE (UCPR Rr 21.9-21.13) 17

3(b) NOTICES TO ADMIT (UCPR rr 17.1 – 17.7) 17

4 Interrogatories 17

APPENDIX – Gathering info and evidence after commencement of proceedings 18

UCPR rr 33.1-33.13 18

10 Gathering Information and Evidence After Initiation of Proceedings – Chapter 11 omit [11.260-80]

Introduction 11.10

Rationale of gathering info:

  • Ways to gather information in civil cases using UCPR

  • So you can determine strength and weaknesses of claim/defence.

  • Promotes settlement.

  • Reduces surprise; puts parties on an equal footing at the trial; helps define and highlights all the issues in dispute; may reduce or save costs by promoting settlement or reducing the issues in dispute and limiting the scope and length of the trial.

Various mechanisms in UCPR

  • Two ways to get information: (a) by agreement between parties (consent) or (b) obtaining court order (parties required to file notice of motion seeking specific orders together with an affidavit which is evidence that supports the order/s being made.

  • Two sources of information: parties or from third parties

Actual ways to get info:

  • Ways to get information under UCPR:

    1. Discovery

    2. Subpoenas

    3. Notices to (a) produce and (b) admit

    4. Interrogatories

  • (Note that these mechanisms are only available to parties after pleadings have been filed and have usually closed – except for preliminary discovery under Ch 5)

Other ways to get information: (1) Eg request for info under FOI (2)Get private investigator

Note: Subpoenaed docs – you give to registry. Discovery docs – you give to other party

1 DISCOVERY OF DOCUMENTS 11.20 – in UCPR rr 21.1-8

Overview

(i) intro

(ii) Problems caused by discovery process 11.30

(iii) Discovery process
(i)

What it is: Discovery enables parties to obtain documents from each other. One party seeks documents within a class from the other party.

  • Objection that can be raised: documents are privileged

  • Rationale: Discovery intended to promote fair trial: Percy v General Motors Holden

Notes:

  • How to get discovery: Discovery can be agreed between the parties or the court can order it.

  • When: Discovery takes place once pleadings have closed so parties are aware of issues in dispute.

  • Ambit of discovery is defined by court order by reference to a class of documents.

(ii) problems caused by discovery process

ALRC

Seven Network

VLRC

Law:

  • CL test Peruvian Guano : a document relevant to a question in issue is discoverable if it would lead to a train of inquiry which would either advance a party’s own case or damage that of the adversary: Temmler; applying Peruvian Guano test –

  • CL test has been limited by UCPR r 21 which confines the scope of discovery to classes of documents.

21.2 Order for discovery

(1) The court may order that party B must give discovery to party A of:

(a) documents within a class or classes specified in the order, or

(b) one or more samples (selected in such manner as the court may specify) of documents within such a class.

(2) A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances.

(3) Subject to subrule (2), a class of documents may be specified:

(a) by relevance to one or more facts in issue, or

(b) by description of the nature of the documents and the period within which they were brought into existence, or

(c) in such other manner as the court considers appropriate in the circumstances.

(4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact

Case: Seven

Facts:

  • Mega-litigation. Multiple and separate

  • 7 network – sued a number of parties for engaging in anti-competitive conduct which it claimed forced the closure of c7 which was a producer and distributor of sports channels for Australian pay television platforms.

  • Trial – 120 hearing days, electronic courtroom. Over 12 k documents, would been more if not reject more evidence

  • Parties spend $200 million on legal costs in connection with these proceedings

  • Seven seeking $1billion damages. Now reduced amount claimed to $190-212 million. This would be grossed up to account for income tax, and pre-judgment interest. Tax has to be paid on damages award, so maximum stake in litigation not been much more than total legal costs incurred.

Commentary:

  • Mega-litigation generates many months of court time, vast quantities of documentation, imposes large burden on parties and court system and community.

VLRC report

Issues:

Abuse:

Three categories of discovery abuse:

  1. Making unnecessarily broad discovery requests

  2. Withholding information to which requesting party is entitled

  3. Providing many irrelevant documents to overwhelm other side (or inappropriately conceal documents)

Rationale of discovery: avoid trial by ambush.

Document destruction:

  • Examples of document destruction: McCabe case. Trial judge exercised discretion to strike out defence of British American Tobacco because P’s prospects of fair trial damaged by destruction fo documents. Overturned by VCA. ]

(iii) Discovery Process [11.7] – UCPR r 21.1-8

Technology and Discovery – Practice Note SC Gen 7 SC on Use of technology

CASE STUDY – Priest

Process for discovery

Order:

  1. Party A files and serves notice of motion (with supporting affidavits) seeking discovery pursuant to UCPR r 21.2

  2. Notice of motion heard and court may order discovery of a ‘class of documents’: UCPR r 21.2

  3. List documents: Within 28 days of order (or as order specifies) Party B prepares list of documents (UCPR r 21.3) which is divided into two parts (documents in...

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