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10 Methods of Gathering Evidence

2 contravention constitutes contempt of court 3 a

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(2) …contravention …constitutes contempt of court. (3) A person… may be released from the obligation … by leave of the court. (4) Without limiting this section or discovery in any civil proceeding any information or documents exchanged in compliance with the overarching obligation in section 26 is required to be discovered in the civil proceeding to be admissible in that proceeding. (5) Nothing in this section limits any other undertaking to a court (implied or specific) whether at common law or otherwise, in relation to information or documents disclosed or discovered in a civil proceeding. 33
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Permitted Use of Discoverable Documents Dixon J in Octagon Inc v Hewitt (No 2) [2011] VSC 373 at [40]: “there is recognition in s 27 of the Act of the principle in Home Office v Harman. The section provides that a person, who receives any information or documents provided by another person involved in the civil proceeding as a result of disclosure in compliance with the overarching obligation in s 26, is subject to an obligation not to use or permit the use of the information or documents for a purpose other than in connection with the civil proceeding. Such an obligation is an obligation to the court, contravention of which constitutes contempt of court.” 34
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Permitted Use of Discoverable Documents There is obvious potential for documents handed over to be used for ulterior purposes, esp. in litigation between competitors Documents discovered in McCabe could not then be used by Slater & Gordon in later proceedings, or in the United States. The Court of Appeal rejected the argument that they were then part of evidence and matter of public record. But NSW and Fed Court rules do allow it. 35
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McCabe & permitted use 24 April 2002 – McCabe commences separate proceedings seeking declaration use of docs outside the proceedings was not limited by implied undertaking 7 May 2002 -Byrne J grants declaration that no implied undertaking that docs will only be used for the proceedings (so McCabe could supply to US Justice Dept) 8 May 2002 BAT seek to reinstate implied undertaking & dissolve 7 May judgment 15 May 2002 Byrne J dismisses BAT’s application 14 June 2002 Court of Appeal overturns Byrne’s J judgment pending determination of appeal in the ‘main’ proceedings
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Default: r 29.12.1 If a party fails to make discovery within 7 days of a notice of default in discovery being served, then the Court may order— that the proceeding be dismissed; that the defendant's defence be struck out.
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R 29.14 Committal on default (1) Without limiting R 24.02, a party who does not within the time limited comply with an order under R 29.08(2) or 29.11...shall be liable to committal. (2) Service of an order for discovery or production of documents on the defaulting party’s solicitor shall be sufficient service to found an application for committal of the party disobeying the order (but the party may show in answer to the application that they had no notice or knowledge of the order).
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