10 Methods of Gathering Evidence

3 a solicitor whose client is subject to such an

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(3) A solicitor whose client is subject to such an order who fails without reasonable excuse to give notice to their client shall be liable to committal.
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McCabe per Eames R 24.02 Where a party fails to comply with an order to for discovery/inspection/interrogatories If party is P, proceeding can be dismissed If party is D, defence can be struck out. R 24.05 Nothing in this Order shall affect the inherent power of the Court to … order that upon the failure of a party to do any act or take any step which ...the party is required to do [under the Rules] the proceeding shall be dismissed or the defence struck out & that judgment may be entered ...
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McCabe per Eames J. Process of discovery subverted by the defendant & its legal advisers with the deliberate intention of denying the plaintiff a fair trial Only appropriate order is to strike out the defence and enter judgment for the plaintiff.
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per Court of Appeal Focused on fact that destruction was before proceedings were initiated thus not non-compliance with discovery– Only reason to intervene in such circumstances was if BAT’s conduct amounted to attempt to pervert the course of justice (not argued so CA didn’t make a decision about it). But McCabe led to several pieces of legislation including one making document destruction a criminal offence.
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Crimes Act s 254(1) inserted by Crimes (Document Destruction) Act 2006 (Vic) A person who— (a) knows that a document or other thing of any kind is, or is reasonably likely to be, required in evidence in a legal proceeding; and (b) either— (i) destroys or conceals it or renders it illegible, undecipherable or incapable of identification; or (ii) expressly, tacitly or impliedly authorises or permits another person to destroy or conceal it or render it illegible, undecipherable or incapable of identification and that other person does so; and (c) acts as described in paragraph (b) with the intention of preventing it from being used in evidence in a legal proceeding— is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum) or a level 6 fine or both.
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Evidence (Misc Provisions) Act 1958 Division 9 of Part III, ss89A – 89F Additional to Evidence Act 2008 S 89B(1) If, in a civil proceeding, it appears to the court that- (a) a document is unavailable; and (b) no reproduction of the document is available in place of the original document; and (c) the unavailability of the document is likely to cause unfairness to a party to the proceeding- the court, on its own motion or on the application of a party, may make any ruling or order that the court considers necessary to ensure fairness to all parties to the proceeding
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Evidence (Misc Provisions) Act 1958 S 89B(2) Without limiting s 89B (1), a ruling or order may be that: (a) An adverse inference be drawn from the unavailability of the document (b) A fact in issue can be presumed to be true in the absence of evidence to the contrary (c)That certain evidence not be adduced (d) That a defence or statement of claim be struck out in whole or in part (e)That the evidential burden of proof be reversed in relation to a fact in issue 44
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