Topic 10 - Gathering Evidence PDF

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Topic 10: Gathering Evidence Gathering evidence is about getting the right evidence to get to trial. Although not all matters go to trial this evidence can still help in achieving an outcome.

Discovery Discovery is a court supervised process & includes inspection. It is to ensure complete factual information is available to the parties and court to ensure justice is done. It is the compulsory disclosure of facts or documents on which a party relies. It is a process where a party reveals to the other parties the documentary materials of which it is aware and that are relevant to the matter. Party-party discovery is a type of discovery (between parties to an action), there are other types of discovery. In actions begun by Writ, the RSC requires that lists of docs must be served by each party after the 'close of pleadings', in any other type of proceedings the Court may order any party to make and serve a list of documents. **Red book has lots of info around O 26** Order 26 - Discovery and Inspection  R 1A – defines document = means any record of information  R 1 – discovery without order. General Obligation. Any party may give notice in writing to any other party in a cause or matter requiring him to give discovery of all documents which are or have been in his possession, custody or power relating to any matter in question in the proceeding.  R 2 – the ‘test’ or primary obligation inures until the trial has concluded; parties have a continuing obligation to provide discovery. Continuing Obligation.  R 4 – mode of discovery; forms 17 & 18  Rr 6 & 7 – discovery can be provided informally, can occur by notice and/or by order  R 6 – orders for specific documents or class of documents  R 8 – orders as to discovery / inspection  Some superior courts in other States and the Federal Court require a party to obtain leave for discovery; there is no general entitlement and leave will be granted to allow discovery for specified issues only

‘Possession, custody or power’  Swanston v Lishman (1881) 45 LT 360 & Lazarus v Mozley (1859) 1 LT 3.  Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 – presently enforceable legal right to obtain inspection of it from whoever actually holds it without obtaining the consent of another person.  ‘power’ is a question of fact, see Taylor v Santos Ltd (1998) 71 SASR 434  Reed v Amaca Pty Ltd (formerly James Hardie and Coy Pty Ltd) [2010] WASC 14  Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259 [considering the now repealed O 29 r 2 RSC] o Court has power to direct a party to take steps to obtain access to and discover docs which are in the possession, custody or power of a 3rd party where there is a real likelihood that the party to the proceeding would be given access to the documents upon request. ‘Relating to any matter in question therein’: Campaigne Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55:  O 26 r 3 – list of discovery docs must be detailed in form 17  O 26 r 3(a) – form verified in affidavit by person mentioned (parties r4(4))  O 26 r 4(3) – An affidavit verifying a list of documents must be in form 18  Companies were involved in guano trade (bird fertiliser), P brought proceedings for breach of contract D contented no contract yet.  Dispute about discovery provided by P, D appealed contending further discovery required to see P’s minute books showing negotiation of agreement  Lord Justice Brett Rule: the party swearing the affidavit is bound to set out all documents in his possession or under his control relating to any matters in question in the action. We (the court) desire to make the rule as large as we can with due regard for propriety.  Held: every document which relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contain information which may (not which must) either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary if it is a document which may fairly lead him to a train of enquiry which may have either of those consequences. TEST  P was ordered to make a further affidavit of the documents.  Importance of this case is that the minute book disclosed matters that weren’t captured in any of the discovered docs included in the original list. This still happens now. Closer Examination of Order 26 

R 2 vests a continuing obligation to give discovery until the conclusion of the trial.

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R 4 – mode of, list & affidavit. Form 17 List of documents. Form 18 affidavit verifying the list of documents. R 16A – practitioner of party giving discovery must sign a certificate addressed to the court stating that the duty of discovery has been fully explained to the party. R 6 – used for specific documents that are missing.

Further and Better Discovery Enables applications for discovery of documents and/or for orders for further and better discovery where the discovery given has been insufficient. R 7 – orders for discovery. Sub rule 1 & 2 you can bring an application without affidavit for discovery if you have sent a notice asking for discovery (won’t happen in SC as everything is case managed. Sub rule 3 has standard orders that can be made re discovery by case manager. O4A Case management gives court broad authority to do more… refer to part 4 CPD for usual orders that may be made. R 8 & 8A – once list of documents is given there is an obligation for inspection of the documents. R 15 – empowers court to make ‘such other orders as it thinks just’ where there has been a failure to comply with any of the rules in respect of discovery. o Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [3] – [6].  Request for further and better discovery made under r 6.  The further documents have to satisfy the test in r 1 and satisfy the court that it will assist the fair and just determination of the issues in contention, or to conduct the case, further orders may be made. o Rafferty v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2017] WASC 18  P developed asbestosis and sues amaca, attempts to get more information from them.  Orders are about being certain that further documents have or have been in a party’s obsession.  P sought further and better discovery from Amaca and a related foundation relevant to his case.  For an order under rule 6 party must establish that there are reasonable grounds for being fairly certain that the pursued documents actually do or did exist in the possession, power or custody of the other party; and the pursued documents relate to a matter in the action.  Plaintiff’s applications for other classes of docs – ultimately not allowed for each class and explanation given  Sabre order – order to make reasonable efforts to procure documents from an associated body that holds them and an ancillary order to discover documents received if the outcome of the first order is a success [60]. o

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[63] The circumstances in which the court should make such an order are not closed but before making such an order the court should consider: (a)whether there is a real likelihood that the party against whom the order is sought would be given access to the documents upon request; (b)it must be likely that the documents sought are in fact in existence in the possession of the third party; and (c)the order must be restricted to require the person against whom it is made to take all reasonable steps to obtain the documents: SPI Spirits [31]–[33] (Edmonds J).  * there are overarching tests about f&B discovery which pivot on O 26 r 1 (matter in question; possession, power and control) and then the relevance test in Peruvian. Behan v Stonehouse [No 2] [2018] WASC 205  Originally commenced in VIC and transferred to WA under cross-vesting legislation  Defamation about Facebook posts made by defendant  Failure by both parties to comply with CM dates, changes in solicitors, errors on affidavit  Request has to be supported in a thorough and appropriate matter. Decision will be based on the submissions and effect of any other evidence.  Read case? Unclear. Sabre Order – Sabre Corporation Pty Ltd v Russ Kalvin’s Haircare Company (1993) 46 FCR 328

O 1 r 4B & O 4A – discovery must be within case management principles; timely and cost effective disposal of proceedings Non-compliance with requirements for discovery can result in an order to dismiss the action or defence be struck out and judgement entered accordingly – O 26 r 15 Failure to give proper discovery can provide a basis upon which an appellate court may grant a new trial, see Quade v CBA (1991) 27 FCR 569 A list of discoverable documents verified on oath is generally treated as conclusive as to its contents – Chandler v Water Corporation [2004] WASC 95.

Inspection/exchange, redaction and masking Parties have obligation to allow the opponent to inspect all documents contained in the list to which objection to production has not been taken – O 26 r 8

Specific guidance for procedure and manner found in O 26 r 8A

Court can make an order for production at any stage r 10

Where parts of a document are not discoverable and should be protected, a party may ‘redact’ the non-discoverable information O 26 r 1B

Restrictions on use of discovered documents Documents inspected during the discovery process are subject to the ‘usual’ implied undertaking, a substantive obligation not to use the documents for any purpose collateral to the litigation. Where one party is compelled, by reason of a rule of the court or a specific order of the court, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use that disclosure for any purpose other than for what it was given, unless it is received into evidence (most cases don’t go to trial, if go to trial docs may be used as evidence and then become part of the public domain) – Hearne v Street (2008) 235 CLR 125 Breach of this undertaking can amount to contempt of court – Hammersley Iron Pty Ltd v Lovell (1998) 19 WAR 316. Lovell went on radio and spoke about conduct of P drawing from documents that he had access to in discovery of industrial dispute proceedings. Brought back for contempt of court. In appropriate circumstances the court will give leave to a party to use discovered documents in another proceeding or for some other purpose if there are special circumstances which make it just to do so. Each party’s obligation to not use the information on discovery for any collateral purpose can be modified if special circumstances arise which make it just to do so.

District Court Order 26 does apply

See r 46 DCR

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Specific documents for personal injury actions r 46(2a)

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Informal list by consent r 46(3)

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Discovery within 60 days from filing of defence (unless by order) r 46(4)

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Timeframe for inspection altered r 46(5)

Claims of privilege and public interest immunity

Interrogatories Written questions used to obtain sworn answers to be used at trial

WA Pines Pty Ltd v Bannerman (1979) 30 ALR 559, Lockhart J described 4 objects of interrogatories as:

1. To obtain admissions of facts which will support the case of the interrogating party 2. To obtain admissions which will destroy or damage the case of the interrogated party 3. Interrogatories which request further and better particulars 4. Interrogatories which seek to obtain accounts from a party occupying a fiduciary position

RSC O 27

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Cannot be administered of right in WASCA, leave of the Court is required.

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Proposed interrogatories are attached to any application seeking leave to administer them

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Answers are required within 14 days and are provided by statement verified by affidavit

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Grounds for objection and the manner in which objection is raised are specified

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Failure to comply with a requirement to answer INT can lead to stay or dismissal of the action

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See example Smith v Leveraged Equities Ltd (No 2 ) [2014] WASC 128

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Purpose of requiring leave is to ensure they are administered to serve a legitimate forensic purpose and that the time and cost associated is proportionate

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Answers to interrogatories can be tendered at trial but are not formal admissions nor conclusive evidence

DCR r 47

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Allows INT to be administered without leave in personal injury matters, r 47 DCR o

Leave not required if parties consent r 47(2)

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Not required if the action is a personal injuries claim r 47(3)

pre-action & non-party discovery Pre-action discovery; Court’s ability to make orders for discovery prior to the commencement of proceedings.

Non-party discovery; orders for discovery against non-parties.

These orders differ from Sabre orders – Lafferty v Waterton (No 2) [2017] WASC 84.

O 26A RSC

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Enables access to information to identify a potential party – r 3 o

A prima facie case does not need to be shown to satisfy the ‘appears to have a CoA threshold. However, there must be some apparent CoA to succeed in an application pursuant to this rule.

 The applicant wants to take proceedings against the potential party in the course of the action to which the applicant is a party  The applicant has made reasonable enquiries  The applicant has not been able to ascertain a description of the potential party sufficient for the purposes of taking proceedings against the potential party  There are reasonable grounds for believing that the non-party had, has or is likely to have had or to have, possession of information, documents or any object that may assist in ascertaining the description of the potential party.

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Hancock Family Memorial Foundation Ltd v Fieldhouse (No 2) [2008] WASC 147 $ (both rr 3 & 4)

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NSW Solicitors Mutual Indemnity Fund v Hancock Family Memorial Foundation Ltd (No 2) [2009] WASCA 146

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Access to information to decide whether there is a basis for proceeding against a potential party – r 4 o

Purpose of this rule would be defeated if the applicant had to demonstrate the present existence of a CoA as a condition to the exercise of the court’s jurisdiction. Should be given an ample or expansive interpretation as it essentially allows a fishing expedition.

 It must establish that it ‘may have a cause of action’  That the potential cause of action is against a person whose description has been ascertained  The applicant wants to take proceedings against the potential party or wants to take proceedings against the potential party in the cause of action to which the person is a party  The applicant has made reasonable enquiries and has not been able to obtain sufficient information to decide whether or not to commence proceedings  At the time of making the application the applicant has not reached a decision about whether to take proceedings  There are reasonable grounds for believing that the potential party had, has or is likely to have had, or to have, possession of documents that may assist in making the decision whether to take proceedings  The applicant must be supported by an affidavit which is served on the potential party

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Waller v Waller [2009] WASCA 61 $ See CJ [4] – [7] and Le Miere J [71] – [75]

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Central Exchange Ltd v Anaconda Nickel Ltd (2002) 26 WAR 33 $

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Kelbush Pty Ltd v ANZ Banking Group Ltd (2016) 49 WAR 374 $ 

$ Henderson v Fenwick [2014] WASC 176 [Gething, Acting Master]

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$ Wintle v Yilgarn Shire Council [2015] WASC 445 [Gething, Acting Master]

Access to information from a non-party that relates to any matter in question in the action – r5  Reasonable grounds for believing a person who is a non-party had, has, likely to have had or have documents that relate to a matter in question: r 5(1)  Affidavit served on non-party and other parties to the proceedings.  Under this rule there must be a proceeding already on foot. o

Eccles v Koolan Iron Ore Pty Ltd [2011] WASC 235 $

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Fairfax Media Publications Pty Ltd v Western Australian Rugby Union Inc [2008] WASCA 123

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Will only be made if there is a determination of what might be ‘documents that relate to any matter in question in the action’, any application must address this.

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Abuse of process to seek leave to issue subpoena to produce documents to avoid an application pursuant to this rule.

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Court has power to order costs in respect – r 7 & 7(3)

Applications pursuant to any of these 3 rules must be supported by affidavit and be served on the non-party against whom the orders are sought.

If proceedings already exist the party seeking the orders will apply by chamber summons. If proceedings have not yet been issued the intended party will apply by originating summons.

Discretion exercised carefully because pre-proceedings can be a s2erious invasion of someone’s privacy.

subpoenas A subpoena is court process that mandates either the attendance of a person or the production of documents to the court for use in the trial of a matter: compulsory court process that commands compliance, refusal to obey amounting to contempt – see James v Cowan (1929) 42 CLR 305

Authority to issue a subpoena falls within a courts inherent jurisdiction – Carter v Mallesons Stephen Jacques (1993) 11 WAR 159 (WA Inc decision, summarises subpoenas in WA to that date)

Leave from the court required to issue a subpoena

Background

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Process by which an addressee complies with a subpoena, Commissioner for Railways v Small (1938) 38 SR (NSW) 564 o

Widow commenced case for husband who had fallen out of train and passed (before automatic doors)

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P’s lawyers issued subpoena to Commissioner of Railways to get info pertaining to case

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Discussions pertaining to subpoenas occurred in front of jury. D claimed outcome influenced by jury hearing that.

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CJ at 573: person served with subpoena must obey and bring the docs to court if he has them. Unless he appeals the subpoena and has good reason not to produce them. A witness called on a subpoena may be asked without being sworn whether he has brought the docs and produced them to the court. If he objects he must be sworn and grounds stated on oath.

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Ibid, he produces to the court not to the parties and may object to docs being given to parties (up to judge’s discretion how this plays out).

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In essence three stages; must comply, must produce, if there is an objection it needs to be articulated

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Then if court is satisfied with docs they go into courts possession who may make ruling that parties are able to see them and then subject to rules of admissibility they may be tendered into evidence.

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Process by which a third party brings documents to the court pursuant to subpoena in National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 o

Mr Hill injured driving to work by W in other car, H made a workers compensation claim, and sued W upon return to work

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W issued subpoena seeking to access materials from insurer who paid the claim

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