Week 4 - Online - Lecture note 4 PDF

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Week 4 – online lecture

1 WHERE ARE WE IN OUR PROCEEDING?   

We have made the decision to litigate (hopefully after much deep consideration of financial, emotional and time costs and after engaging in ADR). We have commenced our litigation and the parties have filed and served the pleadings setting out their case (claims, defences, replies). Next step is preparing evidence. Essentially 2 kinds: documentary and witness.

2 PREPARING EVIDENCE IN LITIGATION  

Collecting Documents to use as evidence: discovery, subpoenas, notices to admit/produce, interrogatories. Preparing Witness Evidence: locate and interview witnesses, prepare affidavits/witness statements for lay and expert witnesses. Lay witnesses are witnesses of fact (people who saw or experienced the facts you are trying to establish for your case in court). Subpoena your witnesses to appear in court (for examination and cross examination).

3 THE IMPORTANCE OF FACTS  

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Facts are very important in the majority of court cases at a trial level. The cases we study in substantive law subjects are usually appellate decisions where the facts are no longer in issue (having been decided at the trial level). This gives law students an artificial view of how important facts are. Facts are much more important than other subjects would lead you to believe! Most of what trial lawyers in Australia do is prove facts using documents and witness evidence. Most litigators spend most of their time litigating in trials not in appeals!

4 IMPORTANCE OF EVIDENCE   

t is not enough to know the facts. You have to prove facts for them to be accepted by the judge as evidence proving your argument. You prove the facts using the rules of evidence and these rules limit what is admissible as evidence.

5 THE PROCEDURES TO GATHER EVIDENCE      

Notice to admit (information from parties) (Wk 3) Discovery (usually documents between parties)(Wk 4) Subpoena (documents or oral on third parties) (Wk 5) Notice to produce (documents from parties) (Wk 5) Interrogatories (questions between parties) (Wk 5) [There are other ways to gather evidence: FOI application, private investigation, expert evidence, interview witnesses etc]

6 DISCOVERY 6.1 WHAT IS IT?   

‘Discovery’: procedures by which one party to litigation is able to obtain documents held by other parties. Sometimes also called “disclosure”. Note that discovery can also be made without a court order by agreement between the parties (informal discovery).

6.2 ADVANTAGES   

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Reduces potential for surprise Enables parties to understand each other’s cases better Reduces inequality between parties particularly where one party is government or large corporation with significantly greater access to documentary records and information (eg BAT v Mrs McCabe in Big Lie video) Therefore, discovery potentially improves procedural fairness.

6.3 DISADVANTAGES   

Discovery is very expensive and exceedingly time consuming. Therefore, it is the antithesis of “cheap and quick” in s56 CPA (but it might be necessary for “just”). Discovery is complicated and so imposes a significant burden on lawyers and their clients. its complexity often leads to interlocutory disputes further increasing cost and time (see ERA v Armstrong 2013).

6.4 DISCOVERY PROCESS 1. Party A files notice of motion seeking discovery under rule 21.2 – motion served 2. hearing of notice of motion. Court orders discovery – rule 21.2 3. Party B makes list – rule 21.3 4. Party B provides affidavit and solicitor makes certificate – rule 21.4 5. inspection by Party A

6.5 ORDERS FOR DISCOVERY 

UCPR 21.2(1) o (1) Party B may be ordered to give discovery to Party A of: (a) documents with a specified class or classes, or (b) sample/s of documents within a class. o (2) A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances.

6.6 HOW ARE CLASSES OF DOCUMENTS SPECIFIED 

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UCPR 21.2(3) o (a) by relevance to one or more facts in issue, or o (b) by description of their nature and time period within which they were brought into existence, or o (c) in such other manner as the court considers appropriate in the circumstances. This is subject to subrule (2) (limiting generality).

6.7 DIFFICULTIES WITH CLASSES AND CATEGORIES OF DOCUMENTS 

Ashton v Pratt [2010] NSWSC 1376 - an ex tempore judgment of Brereton J. (Willis p144) o Categories of discovery should be framed with reference to issues in dispute not descriptions of documents or classes of documents. o Discovery obligation extends only to relevant documents regardless of terms in which categories of documents are described.

6.8 “RELEVANT  

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TO A FACT IN ISSUE” Compare the old Peruvian Guano test with the current test under UCPR 21.1(2). UCPR 21.1(2) – “...if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness) regardless of whether the document or matter would be admissible in evidence.” o v Peruvian Guano – a document relevant to a question in issue is discoverable if it would lead to a train of inquiry which would either advance a party’s own case or damage that of the adversary.

7 METHOD OF GIVING DISCOVERY     

List of documents [21.3] in possession; within 6 months prior to commencement were in possession Brief description (nature and date) [21.3(2) (b)] Specify person believed to be in possession [(c)] Identify any privileged documents and the circumstances said to give rise to the privilege [(d)]

8 EXCLUDED DOCUMENTS  

Pursuant to rule 21.3(1)‘Excluded documents’ do not need to be included in the list of documents prepared by party B: Which documents are ‘excluded documents’? o See 21.1 (Definitions): (paraphrased:  (a) filed documents  (b) served documents (  c)post commencement documents  (d) irrelevant copies of discovered documents  (e) original documents sent to 3rd parties where copy discovered.)

9 WHAT SUPPORTING DOCUMENTS MUST ACCOMPY THE LIST 

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UCPR 21.4(1) o (a)a supporting affidavit, and o (b) a solicitor’s certificate of advice, if party B has a solicitor. What do these documents state and what is their purpose? – See UCPR 21.4(2).

10 VERIFICATION OF DISCOVERY Con Ange v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 1200, 

Garling J gave reasons for his decision to allow the cross-examination of a plaintiff on his affidavit verifying discovery. (Willis p152-156)  “42 For my part, particularly in light of the provisions of s 56 of the Civil Procedure Act 2005 and the extensive use of the modern tools of case management to ensure that the real issues in dispute are addressed in a cost-effective manner... I see no compelling reason to accord to an affidavit verifying a list of documents by way of discovery any special status. Proper compliance with a party’s obligations of discovery under the overall supervision of the Court is an important and necessary part of modern litigation. The Court has the capacity to limit discovery, or control the process of giving discovery, so that it does not become unduly onerous.”

11 ACCESS TO DOCUMENTS  

Documents to be made accessible and produced to party A (UCPR 21.5) , Increasingly by means of electronic databases. Less commonly these days by rooms of documents and photocopying requests.

12 CONTINUING OBLIGATION TO GIVE DISCOVERY 

UCPR 21.6 : o Part 1 documents in party B’s possession which become known after discovery has been made are to be made available to Party A. o This includes privileged documents which have ceased to be privileged.

12.1NON 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, o Except by leave of the court o Unless the document has been received into evidence in open court  [UCPR 21.7]

13 ELECTRONIC DISCOVERY OF DOCUMENTS  

• SC Practice Note No 127 encourages the use of technology for the purposes of information exchange and at trial itself. Parties are ‘specifically encouraged to … use electronic data to create lists of their discoverable documents’ and to ‘give discovery by exchanging databases’.

14 DESTRUCTION OF DOCUMENTS 

Can you destroy documents in anticipation of litigation? – No, but...

o o o

British American Tobacco Australia Services Limited v Cowell (estate of Rolah McCabe) [2002] VSCA 197 dubious “document retention” policy Crimes (Document Destruction) Act 2006 (Vic) Evidence (Document Unavailability) Act 2006 (Vic) British American Tobacco Australia Services Limited v Laurie [2011] HCA 2

15 DISCOVERY ABUSE 

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ALRC, Managing Justice (1999) – o 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 ; ‘Dump truck’ discovery ; ‘Fishing expeditions’ Abuse of privilege Document destruction –McCabe v British American Tobacco

16 DISCOVERY REFORM 

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Access to Justice: Productivity Commission Report Dec 2014. Overview p15 o “Rules around discovery and expert witnesses — both of which have been identified as significant contributors to cost — stand out as two areas that have undergone change, although not all jurisdictions are equally advanced on this reform process.” Greater judicial scrutiny beneficial Judicial training on discovery management required to support judges to perform this ‘gate-keeper’ role.

17 ERA V ARMSTRONG – ON DISCOVERY 

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 o “44. …discovery is a practice peculiar to common law systems, whereby parties to litigation can be compelled to produce to one another, for inspection and copying, all the documents in their possession or control which contain information that may assist another party to advance its own case or to damage the case of the disclosing party. …"[t]he use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself". o 45. Although discovery is an inherently intrusive process, it is not intended that it be allowed to affect a person's entitlement to maintain the confidentiality of documents where the law allows…. “ [FRENCH CJ, KIEFEL, BELL, GAGELER AND KEANE JJ]

18 DISCOVERY DISPUTES 

Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 8) [2011] FCA 221 (Federal Court) o “2. This is the third occasion in which it has proved necessary in this matter to resolve a dispute between the parties in relation to discovery. That was after an initial expectation in the course of pre-trial management that all disputes on this subject would be brought forward and resolved but once by an interlocutory judgment, and thence, with the benefit of the reasons for judgment for that resolution, by such mutual co-operation between solicitors in the

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interests of justice, as the Court is entitled to expect of officers of the Court. So much for expectations.” Logan J Armstrong Strategic Management and Marketing v Expense Reduction Analysis Group [2013] NSWSC 1702 (15 November 2013 – a week after HC privilege decision) o McDougall J ordered defs to comply with discovery order despite new SC Eq 11 as “wholesale non-compliance” with court order previously led to failure to review a further 100K potentially discoverable documents (they reviewed 60K for discovery): o “The procedural history of this matter could be taken to suggest that the parties have paid less attention to the provisions of s 56 of the Civil Procedure Act 2005 (NSW) than they have to the process of seeking to grind each other into the dust. Whether or not that is a correct summary of what has happened would depend upon a further investigation of the procedural history, which is a course that is not necessary to take for present purposes. Nonetheless, although I cannot express a concluded view on that point, I have a very uncomfortable impression that I am not far from the truth.”

19 REDUCING THE DISCOVERY BURDEN 

UCPR and Practice Notes o Personal Injury: No order for discovery in personal injury claims unless “special reasons” exist (UCPR 21.8) o Equity (including commercial list and technology & construction list but not commercial arbitration list):  Practice Note No. SC Eq 11 – no order for disclosure of documents before evidence and only when necessary.

20 PRACTICE NOTE SC EQ 11 

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Key principle: o Schofields Property Development Pty Ltd v Lindsay-Owen [2014] NSWSC 220 (12 March 2014);  Stephenson J refused to order disclosure prior to finalisation of expert witness reports on the basis that the grounds were not exceptional as the expert had access to relevant materials:  “In Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue; Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2012] NSWSC 913 at [17] Gzell J said: o "[T]o be exceptional the circumstance need not be unique or unprecedented or very rare. What is needed is an appraisal of all the circumstances and the context in which the expression must be satisfied. Are there circumstances necessitating disclosure before evidence in the sense that the party's case cannot be put without the disclosure? Are those circumstances exceptional?“” Recent cases: o • This Practice Note (while generally very successful) continues to spawn significant litigation regarding its application (over 50 Supreme Ct cases to date). E.g.  Skyscanner Limited v Hotels Combined Pty Ltd [2016] NSWSC 183 (8 March 2016). Granted some discovery prior to expert evidence but not prior to lay evidence.  WIN Corporation Pty Ltd v Nine Network Australia Pty Limited [2016] NSWSC 153 (29 February 2016). Parties agreed SC Eq 11 applied to notice to produce (see Wk 5). Documents required to be produced.

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Thiess v Parsons Brinckerhoff Australia [2015] NSWSC 326 (25 March 2015). Denied discovery Lam v Rolls Royce PLC (No 3) [2015] NSWSC 83 (19 February 2015). Denied discovery but indicated potential in class actions with unique defendant knowledge. Suggestion by Bathurst CJ at a conference (Feb 2015) that SC may extend application of SC Eq 11....