Disclosure and discovery - Mini-scenario 1

Facts

A prime mover collided with a train at a railway level crossing in March 2010. The plaintiff, Australian Railroad Group (ARG) sues the defendant, Rowan, who was driving the prime mover at the time of the collision, in negligence. Rowan counterclaims for his own loss and damage, alleging ARG failed to maintain a safe level crossing. Rowan seeks to discover all documents relating to the plaintiff’s accreditation under, and compliance with, the Railroad Safety Act 1998 (‘the Act’).

1:Why would these documents be discoverable?
A)

Because they are documents relating to the statutory obligations of ARG

Incorrect

 

B)

Because they are documents on which ARG relies

Incorrect

 

C)

Because they are documents that adversely affect Rowan’s case

Incorrect

 

D)

Because they are documents that support Rowan’s case

Correct

 

Facts

ARG, considering that it has discharged all of its obligations under the Act, does not discover any documents relating to its accreditation under, or compliance with, the Act. Counsel for Rowan seek to cross-examine the deponent of the affidavit of documents prepared on behalf of ARG, noting that it recently had its licence varied due to non-compliance with the Australian Rail Safety Standard as prescribed under the Act.

2:Can Rowan cross-examine the deponent under s57?
A)

No, because ARG considers that it need not discover the documents, believing that it has discharged its obligations under the Act

Incorrect

 

B)

No, because breach of the Act is not relevant to ARG’s discovery obligations

Incorrect

 

C)

Yes, because ARG has failed to comply with the Act on at least one occasion

Incorrect

 

D)

Yes, because there is a reasonable basis for the belief that ARG is misinterpreting its discovery obligations or failing to disclose discoverable documents

Correct

 

Facts

Upon cross-examination, it becomes obvious that ARG has misinterpreted its discovery obligations, and the court before which the cross-examination occurs finds that the documents are discoverable. Subsequently, ARG still fails to discover the documents, delaying discovery. ARG’s argument is that it ‘lacks time, resources, and organisation’ – and so no sanction can be imposed on it, as under s56(1)(c) conduct must be intended to delay discovery, and here it has only done so inadvertently

3:Accepting this argument, what do you say to that?
A)

As ARG’s argument is accepted, no sanction can be imposed on it

Incorrect

 

B)

Although ARG’s argument is accepted, it has failed to comply with its discovery obligations under s56(1)(a)

Incorrect

 

C)

Although ARG’s argument is accepted, it has failed to comply with an order or direction of the court as per s56(1)(b)

Incorrect

 

D)

Answers (b) and (c) are both correct

Correct

  

4:What of the following sanctions would be least appropriate to impose on ARG under s56?
A)

That indemnity costs orders be imposed on ARG’s lawyers, Layton Cuts, who is primarily responsible for ARG’s failure to meet its discovery obligations

Incorrect

 

B)

That the use of any documents relating to the Act be prohibited from entering into evidence

Correct

  

C)

That compensation be awarded against ARG for any costs borne by Rowan in relation to ARG’s failure to meet its discovery obligations

Incorrect

 

D)

That the conduct of ARG’s lawyers, Layton Cuts, be referred to the Legal Services Commissioner for appropriate disciplinary action

Incorrect

 

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