Contemporaneous file notes: why have one and what are the requirements?

Contemporaneous file notes are documentary evidence of direct oral contact pertaining to the facts of a conversation, noted as soon as practicable after a conversation has taken place.  Where there is a conflicting claim regarding an oral instruction or conversation, contemporaneous file notes may provide evidence to the Court beyond that of mere hearsay and may protect the interests of the person who made the note if later relied upon in legal proceedings. [Read more…]

Is social media chat log a document in Federal Court?

As a general rule, a party to a proceeding in the Federal Court cannot prove the existence of a fact by producing evidence of a statement which they made out of the Court.  This is known as the hearsay rule and is found at section 59 of the Evidence Act 1995 (Cth) (Act).   One (1) of the exceptions to the hearsay rule is in relation to electronic communications.  This allows a person to rely on the communication to prove it was sent to or from one (1) person at a particular time.  To prove a fact of the statement itself is a bit more complicated. [Read more…]

Admissibility of evidence from the Wayback Machine

In a previous article we discussed whether results from the Wayback Machine could be admissible as evidence and the issues surrounding this in relation to the hearsay rule.  A recent decision of the Federal Circuit Court has gone on to consider the authenticity of the screenshots obtained from the Wayback Machine and the relevance of those screenshots. [Read more…]

Can email trackers be submitted as evidence?

Whether email trackers, read receipts and similar indicators that show an email has been received and, ostensibly, read can be submitted as evidence has not been substantially considered in standing jurisprudence.  This article briefly considers whether, in light of existing case law, email trackers can be submitted as evidence. [Read more…]

Evidence from the Wayback Machine

The utility of evidence relating to the existence of websites on the internet and their contents sourced from the Wayback Machine is increasingly being considered by Australian Courts.   The question is whether or not the Courts will accept reports from the Wayback Machine in practice and if so what will they allow? [Read more…]

The importance of evidence and its ubiquity

A fundamental step when preparing for any litigious matter is to gather evidence to support your legal position.  In Queensland, the rules of evidence are located in a number of pieces of legislation, together with a large body of case law.  The focus of this article is to provide a brief overview of evidence and why it is crucial for a party to any civil litigation matter to devote adequate resources to locating it. [Read more…]

Satisfying the evidentiary burden for a search order

An Anton Piller Order is usually made without the presence of the respondent (ex parte) and consequently the Courts require the satisfaction of a high evidential threshold before granting orders of this nature. They are usually made in intellectual property cases but their utility extends to employment matters involving breach of confidence, both equitable and contractual, as well as other breaches of contract.[1] [Read more…]

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