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10 Methods of Gathering Evidence

Where the party making the affidavit claims that any

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Unformatted text preview: where the party making the affidavit claims that any document in that party's possession is privileged from production, state sufficiently the grounds of the privilege . Grounds of privilege (see Evidence Act 2008 (Vic)) Client legal privilege Privilege against self-incrimination Privilege against exposure to penalties & forfeiture Public interest Evidence of settlement negotiations Religious confession privilege Test for Client Legal Privilege s 119, Evidence Act 2008 Communication which is made for the dominant purpose of obtaining legal services in existing or anticipated litigation in Australia or overseas Esso v Commissioner of Taxation (1999 HCA) Communication which is made predominantly for the purpose of obtaining legal advice or use of a lawyer in existing or anticipated litigation i.e. “dominant purpose” test 13 What is a document? Interpretation of Legislation Act 1984 (Vic) s 38 "document" includes, in addition to a document in writing— (a) any book, map, plan, graph or drawing; (b) any photograph; (c) any label, marking or other writing which identifies or describes anything of which it forms part, or to which it is attached by any means whatsoever; (d) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; (e) any film (including microfilm), negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and (f) anything whatsoever on which is marked any words, figures, letters or symbols which are capable of carrying a definite meaning to persons conversant with them; What is a Document? cont. Broad enough to cover information stored on computers. Includes deleted emails that may still be stored on a back up system: Sony Music Entertainment (Aust) Ltd v University of Tasmania [2003] FCA 724. Court may order a forensic expert be given access to a party’s computer for purpose of retrieving documents. Scope of discovery at common law Compagnie Financiere et Commerciale de Pacifique v Peruvian Guano Co (1882) (Eng CA) Documents that would be evidence upon any issue in the case. Documents that would advance the case of the party seeking discovery. Documents that would damage the case of the party giving discovery. Documents which could lead to a train of inquiry which might advance or damage the case of the party giving discovery Scope of Discovery under r. 29.01.01 r. 29.01.01(3) ... the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search , aware at the time discovery is given- (a) documents on which the party relies; (b) documents that adversely affect the party's own case; (c) documents that adversely affect another party's case; (d) documents that support another party's case. Scope of Discovery under...
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where the party making the affidavit claims that any...

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