10 Methods of Gathering Evidence

Evidence misc provisions act 1958 division 9 of part

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Evidence (Misc Provisions) Act 1958 Division 9 of Part III, ss89A – 89F Court must take account of the unfairness created by the document being unavailable, as well as the reasons for it being unavailable – balancing act.
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Evidence (Misc Provisions) Act 1958 Division 9 of Part III S 89C - Before making an order under s 89B, the court must have regard to- (a) the circumstances in which the document became unavailable; and (b) the impact of the unavailability of the document on the proceeding, including whether the unavailability of the document will adversely affect the ability of a party to prove its case or make a full defence; and (c) any other matter that the court considers relevant. S 89F – Division applies to any civil proceeding and is in addition to any provision under Evidence Act 2008. Court must take account of the unfairness created by the document being unavailable, as well as the reasons for it being unavailable – balancing act. 46
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Civil Procedure Act 2010 Part 4.3 –Disclosure and Discovery Additional to Rules of Court and Evidence (Misc Provisions) Act Section 55 – Court’s powers to order discovery - broad as to form and substance Section 56 – Sanctions Section 57 – Power to order cross examination of deponent if there is a reasonable basis for the belief that the other party may be- (a) misinterpreting the party's discovery obligations; or (b) failing to disclose discoverable documents
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Civil Procedure Act Civil Procedure Act provisions are additional to Rules of Court and Evidence (Misc Provisions) Act S. 26 requires disclosure of documents critical to the resolution of dispute. The section is thorough and detailed, so read in full Considered in Towercom Pty Ltd v Fahour [2011] VSC 455 (9 September 2011). 48
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Preliminary and Non-Party Discovery
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Discovery to Identify a Discovery to Identify a Defendant: r 32.03 Defendant: r 32.03 Applicant (prospective plaintiff) has made reasonable inquiries and is unable to identify the defendant to bring a proceeding against. Appears that a person has relevant docs or knowledge to assist such identification. Court may order that person to make discovery or attend court for oral examination regarding defendant’s identity. Not to identify location or gather evidence.
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Discovery from Prospective Discovery from Prospective Defendant: r 32.05 Defendant: r 32.05 Enables informed decision to be made about whether to commence proceedings against a known defendant. An order for discovery re identity of prospective Defendant does not override rules re privilege . Useful where you have some basis for believing that you have a right to obtain relief based on evidence (rather than a hunch or suspicion) but where you need more info from them.
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Discovery from Non-party: r 32.07 Person not a party likely to be in possession of any document relevant to a question in the proceeding.
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