10 Methods of Gathering Evidence

Context civil procedure act s 26 overarching

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Context: Civil Procedure Act S 26: Overarching obligation to disclose existence of all documents which are critical to the resolution of the dispute - does not limit or affect a party's obligations in relation to discovery. 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.’
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...Scope of Discovery: r. 29.01.01 Reasonable search? r. 29.01.01(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.
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... Scope of Discovery No search for category or class of document 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.
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Possession, Custody or Power Possession: the physical holding of the document resulting from the right to its possession (e.g. an agent or bailee) Custody: the mere actual physical holding of a document, regardless of ownership, regardless of the right to possession (e.g. an employee) 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)
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Restricted discovery: r 29.05 Court can order at any time: Discovery by a party not required; or Discovery limited to: Certain documents Certain classes of documents Certain questions in the proceeding
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Restricted Discovery May be used to: Prevent disclosure of trade secrets to a competitor (especially if not necessary in the proceedings); or Avoid parties incurring costs which cannot be justified by the proceedings e.g. because of enormous number of documents compared to the amount in dispute (case management).
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Restricted Discovery Mobil Oil v Guina Developments (Vic CA) 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 If the material confidential, but does not bear upon case plf seeking to make, should not be revealed
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Order 29.07 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
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Particular discovery: r 29.08 If grounds to believe a relevant doc or class of docs is or has been in a party’s possession, court can order an affidavit: Stating whether such docs were ever in the party’s possession If so, describing each one If no longer in possession, stating what became of each one
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Further Discovery: r 29.11
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