Of advice if party b has a solicitor access to

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of advice, if party B has a solicitor Access to 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 Non-disclosure of discovered documents in other proceedings No copy or information from a document obtained as a result of discovery is to be disclosed, or used otherwise than for the conduct of the proceedings, Except by leave of the court Unless the document has been received into evidence in open court [UCPR 21.7] 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. - Document concealment – don’t hand it over even though you know it’s there and that it is relevant - Dump truck discovery – dumb you with huge amounts of material that you won’t be able to find the one you want - Fishing expeditions – asking for unimportant stuff just to make your life difficult - Abuse of privilege – claiming privilege on absolutely everything and anything even though it clearly isn’t - Document destruction – McCabe v British American Tobacco
LAWS398 Civil Notes Subpoenas can subvert Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] Complex proceeding regarding construction of shopping centre and apartments in Punchbowl, allegations of fraud, one key player deceased. Held: 3 rd party subpoena on NAB set aside in its entirety as an abuse of process. It subverted practice note by effectively seeking disclosure without meeting PN requirements. [it was also a “fishing expedition” and required 3 rd party to form a judgement of issues relevant to proceedings. Both breaches of subpoena requirements.] Privilege – the key 3 privileges - Client legal privilege (most common/important) - Negotiations privilege - Public interest immunity Context of a claim for privilege - Documents produced in discovery - Documents produced on subpoena - Answering interrogatories or notice to admit - Documents produced to answer to a Notice to produce - In the trial – at the time evidence is “adduced” – cross examination of witnesses What law determined privilege? - Evidence Act 1995 (NSW) and the most identical Evidence Act 1995 (Cth0. - Civil Procedure Act / Uniform Civil Procedure Rules - All derive from common law Complexities of Applicable law - S131A expanded the operation of those sections to pre-trial proceedings - Led to new limitations that s131A only applied where the person producing = person claiming privilege Singtel v Weston [2011] - Led to new limitations that s131A only applied where the person producing = person claiming privilege - The invention of interim stage of discovery only covered by common law was, sensibly rejected in Singtel v Weston [2011] Client Legal Privilege 2 types of CLP (common law title was legal professional privilege – LPP) 1. Legal advice privilege s118 evidence act 2. Litigation privilege s119 evidence act most common form of privilege Elements of client legal privilege 1.

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