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Gathering Evidence Notes

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This is an extract of our Gathering Evidence document, which we sell as part of our Civil Procedure Notes collection written by the top tier of University Of Sydney students.

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VII. Methods of Gathering Evidence

There are other ways to gather evidence: FOI application, private investigation, expert evidence, interview witnesses, etc.

The Procedure to gather evidence Discovery (usually documents between parties) Interrogatories (question between parties) Subpoena (documents or oral on third parties) Notice to produce (documents from parties) Notice to admit (information from parties) Discovery

Note that discovery can also be made without an order (informal discovery).

Discovery occurs during the litigation procedure after pleadings have closed (i.e., after proceedings have commenced) but before trial. Discovery is are those procedures by which one party to litigation is able to obtain documents held by other party, sometimes also called "disclosure". The disclosure and inspection of documents in the discovery process is subject to privilege. Advantages of Discovery Reduces potential for surprise Enables parties to understand each other's case better Reduces inequality between parties particularly where one party is government or large corporation with significantly greater access to documentary records and information Therefore discovery improves procedural fairness Disadvantages of Discovery Discovery is very expensive and exceedingly time consuming. Therefore it is the antithesis of "cheap and quick" in s 56 of CPA, but it might be necessary for "just"). Discovery is complicated and so imposes a significant burden on lawyers and their clients. Its complexity often leads to interlocutory disputes further increasing cost and time.

Discovery Process:

1. Party A files notice of motion seeking discovery under the rule 21.2 -- motion served

2. Hearing of notice of motion. Court orders discovery -- rule 21.2

3. Party B makes list -- rule 21.3

4. Party B provides affidavit and solicitor makes certificate -- 21.4

5. Inspection by Party A


21.1 Definitions (1) In this Division: "excluded document" , in relation to proceedings the subject of an order for discovery, means any of the following documents: (a) any document filed in the proceedings, (b) any document served on party A after the commencement of the proceedings, (c) any document that wholly came into existence after the commencement of the proceedings, (d) any additional copy of a document included in the list of documents, being a document that contains no mark, deletion or other matter, relevant to a fact in question, not present in the document so included, (e) any document comprising an original written communication sent by party B prior to the date of commencement of the proceedings of which a copy is included in the list of documents, 1

VII. Methods of Gathering Evidence

Compare with: The old "Peruvian Guano" test: 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
(Vanessa) Which means benefit to oneself and detriment to the other

How are classes of documents specified?
Difficulties with "classes" and "categories" of documents: Ashton v Pratt [2010]:

* Categories of discovery should be framed with reference to issues in dispute not descriptions of documents or classes of documents.

* Discovery obligation extends only to relevant documents regardless of terms in which categories of documents are described. See 21.1, excluded documents include:

* filed documents

* served documents

* post commenced documents

* irrelevant copies of discovered documents

* original documents sent to third parties where copy discovered See subsection (c) 6Ge [?] Yue Zhi Nei Zai def[?] Shou [?] Li

but does not include any document that the court declares not to be an excluded document for the purposes of those proceedings. "list of documents" means a list of documents referred to in rule 21.3. "order for discovery" means an order referred to in rule 21.2. "party A" means a party to whom another party is giving discovery, or being ordered to give discovery, of documents. "party B" means a party who is giving discovery, or being ordered to give discovery, of documents. "party B's affidavit" means an affidavit prepared in relation to the list of documents under rule 21.4. Note: See the Dictionary for further definitions including, in particular, a definition of "possession" . (2) For the purposes of this Division, a document or matter is to be taken to be "relevant to a fact in issue" if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence.

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 in issue.

21.3 List of documents to be prepared (1) Party B must comply with an order for discovery by serving on party A a list of documents that deals with all of the documents (other than excluded documents) referred to in the order. (2) The list of documents: (a) must be divided into two parts: (i) Part 1 relating to documents in the possession of party B, and (ii) Part 2 relating to documents that are not, but that within the last 6 months prior to the commencement of the proceedings have been, in the possession of party B, and (b) must include a brief description (by reference to nature and date or period) of each document or group of documents and, in the case of a group, the number of documents in that group, and (c) must specify, against the description of each document or group in Part 2 of the list of documents, the person (if any) who party B believes to be in possession of the document or group of documents, and (d) must identify any document that is claimed to be a privileged document, and specify the circumstances under which the privilege is claimed to arise. (3) Party B must comply with the requirements of subrule (1): (a) within 28 days after an order for discovery is made, or (b) within such other period (whether more or less than 28 days) as the order may specify.

21.4 Affidavit and certificate supporting list of documents (1) The list of documents must be accompanied by: (a) a supporting affidavit, and (b) if party B has a solicitor, by a solicitor's certificate of advice. Note: See rule 35.3 as to who may make such an affidavit. (2) The affidavit referred to in subrule (1) (a) must state that the deponent: (a) has made reasonable inquiries as to the documents referred to in the order, and

2 VII. Methods of Gathering Evidence

(b) believes that there are no documents (other than excluded documents) falling within any of the classes specified in the order that are, or that within the last 6 months before the commencement of the proceedings have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents), and (c) believes that the documents in Part 1 of the list of documents are within the possession of party B, and (d) believes that the documents in Part 2 of the list of documents are within the possession of the persons (if any) respectively specified in that Part, and (e) as to any document in Part 2 of the list of documents in respect of which no such person is specified, has no belief as to whose possession the document is in, and must state, in respect of any document that is claimed to be a privileged document, the facts relied on as establishing the existence of the privilege. (3) The solicitor's certificate of advice referred to in subrule (1) (b) must state that the solicitor: (a) has advised party B as to the obligations arising under an order for discovery (and if party B is a corporation, which officers of party B have been so advised), and (b) is not aware of any documents within any of the classes specified in the order (other than excluded documents) that are, or that within the last 6 months before the commencement of the proceedings have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents). Documents to be made accessible and produced to party A

* Increasingly by means of electronic databases

* Less commonly these days by rooms of documents and photocopying requests.

21.5 Documents to be made available (1) Subject to the requirements of any Act or law, Party B must ensure that the documents described in Part 1 of the list of documents (other than privileged documents): (a) are physically kept and arranged in a way that makes the documents readily accessible and capable of convenient inspection by party A, and (b) are identified in a way that enables particular documents to be readily retrieved, from the time the list of documents is served on party A until the time the trial of the proceedings is completed. (2) Within 21 days after service of the list of documents, or within such other period or at such other times as the court may specify, party B must, on request by party A: (a) produce for party A's inspection the documents described in Part 1 of the list of documents (other than privileged documents), and (b) make available to party A a person who is able to, and does on party A's request, explain the way the documents are arranged and assist in locating and identifying particular documents or classes of documents, and (c) provide facilities for the inspection and copying of such of the documents (other than privileged documents) as are not capable of being photocopied, and (d) provide photocopies of, or facilities for the photocopying of, such of the documents as are capable of being photocopied, subject to: (i) party A's solicitor undertaking to pay the reasonable costs of providing those photocopies or facilities, or (ii) if party A has no solicitor, party A providing to party B an amount not less than a reasonable estimate of the reasonable costs of providing those photocopies or facilities.

21.6 Subsequently found documents to be made available If at any time after party B's affidavit is made, and before the end of the hearing, party B becomes aware: (a) that any document within the class or classes specified in the relevant order for discovery (not being an excluded document) but not included in Part 1 of the list of documents is within, or has come into, party B's possession, or (b) that any document included in Part 1 of the list of documents which was claimed to be a privileged document was not, or has ceased to be, a privileged document, party B must forthwith give written notice to party A of that fact, and comply with rule 21.5 in respect of the document, as if the document had been included in Part 1 of the list of documents and the list had been served on the date of the giving of the notice.

21.7 Discovered documents not to be disclosed (1) No copy of a document, or information from a document, obtained by party A as a result of discovery by party B is to be disclosed or used otherwise than for the purposes of the conduct of the proceedings, except by leave of the court, unless the document has been received into evidence in open court. 3

VII. Methods of Gathering Evidence

(2) Nothing in subrule (1) affects the power of the court to make an order restricting the disclosure or use of any document, whether or not received into evidence, or the operation of any such order.

Electronic Discovery of documents Supreme Court Practice Note No 127 encourages the use of technology for the purpose of information exchange and at trial itself. Destruction of Documents

1. McCabe sued the defendant negligence in producing cigarettes thus led to her cancer.

2. The trial judge struck out BAT's defence and ordered judgment for the plaintiff because he found thousands of relevant documents had been deliberated destructed by the defendant.

3. In addition, they also misled the court about what had become of the missing documents.

4. However, the result was reversed in appeal because the Appellate Court preferred an "innocent" explanation of the policy and the destruction of documents under the policy.

5. Further, HC refused the plaintiff 's daughter's application of appeal.

Australian Law Reform Commission, Managing Justice (1999)-- P599 McCabe v BAT

Can you destroy documents in an anticipation of litigation? --> No, but ...: McCabe v British American Tobacco Australia Services Limited [2002]: The case has had profound lasting effects.The evidence that the case uncovered was used by the US Department of Justice in its multi-billion dollar lawsuit against the US tobacco industry under anti-racketeering law. The case led to the enactment of new Victorian civil and criminal legislation relating to document destruction. More than ten years on, it is routinely taught in Australian law schools in subjects on civil litigation and legal ethics.

* Trial: the process of discovery in this case was subverted by the defendant and its solicitor... with the deliberate intention of denying a fair trial to the plaintiff, and the strategy to achieve that outcome was successful.

* Court of Appeal unanimously allowed the appeal. In its decision, the Court of Appeal overturned a number of Justice Eames' major findings of fact and conclusions relating to the purpose and propriety of BAT's so-called 'document retention policy', preferring an 'innocent' explanation of the policy and the destruction of documents under the policy. The Court of Appeal also disagreed with Justice Eames about the appropriate means of intervention by courts in cases affected by the unavailability of relevant documents. Discovery Abuse In almost all studies of litigation, discovery is singled out as the procedure most open to abuse, the most costly and the most in need of court supervision and control.

* Parties may obstruct or subvert disclosure, refusing to provide or destroy or conceal relevant documentation which might have assisted the other side.

* The party requesting discovery is "fishing" --- seeking disclosure of significant numbers of documents, perhaps with the intention of creating sufficient aggravation or embarrassment to encourage settlement, or hoping to uncover material which will remedy a weak case or lead to new causes of action.

* Parties volunteer vast number of documents, not to be helpful and cooperative but as a mechanism to hide a single incriminating document which might now be lost in the detail

* Abuse of privilege The discovery process is used strategically by parties. Such tactics can result in significant costs, involve repeated interlocutory hearings and be very time consuming. Reducing Discovery Burden

In Leighton International v Hodges and Thiess v Reinforced Earth [2012] NSWSC 458 ('Leighton'), McDougall J's view on what must be exceptional circumstances can be summarised as below: (a) not normal, or usual; (b) something out of the ordinary; (c) need not be unique; (d) not "exceptional" at large; but (e) "exceptional" because they necessitate disclosure.

Personal injury: no order for discovery in personal injury claims unless "special reasons" exists. Equity (including commercial list and technology & construction list but not commercial arbitration list): Practice Note No.SC Eq 11 --- No order for disclosure of documents before evidence and only when necessary. 4

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