Discovery

Question 1

Prior to the passing of this legislation, discovery was an equitable mechanism and not available in the common law courts.

Answer 1

Common Law Procedure Act (1854) (UK)

Question 2

An early English case that cemented the proposition that you had to make discovery of documents that hurt your case.

Answer 2

Flight v Robinson (1844) per Lord Langdale.

‘However disagreeable… however contrary to his personal interests, however fatal to the claim …, [the party] is required and compelled,…, to set forth all he knows, believes, or thinks in relation to the matters in question.’

Question 3

Which case expoused the ‘chain of inquiry test’, which is still the test of general application in the High Court.

Answer 3

in The Compagnie Financiere Et Commerciale Du Pacifique v The Peruvian Guano Company (1882)

Minute book discovered which referred to documents that might be relevant - those documents referred to were discoverable.

Question 4

Which expouses the injunction against fishing?

Answer 4

Commissioner for Railways v Small (1938) 38 SR (NSW) per Jordan CJ.

Question 5

What was the famous explanation of fishing from Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN(NSW) 250 per Owen J?

Answer 5

‘… a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.’

Question 6

Which case provides that the destruction of documents prior to the commencement of proceedings is not actionable unless it perverts the course of justice or is a contempt of court?

Answer 6

BATAS v McCabe [2002] VSCA 197

Question 7

Which section of the Crimes Act 1958 Vic makes it a criminal act to knowingly destroy documents reasonably likely to be required for a legal proceeding with the intention of preventing the documents from being used in the proceedings?

Answer 7

s 254 Crimes Act 1958 (Vic)

Question 8

What is “recall”?

Answer 8

The percentage of relevant documents discovered.

As total number of relevant documents is never certain (including because definition of relevance is vague), recall can only ever be estimated, never calculated.

Question 9

What is “precision”?

Answer 9

Precision is the percentage documents disovered which are relevant.

It is the inverse of recall.