Civ pro notes discovery PDF

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Civil Procedure Notes CSU NSW - Discovery...

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Civil Procedure

Topic 7 – DISCOVERY

Notice to Produce (UCPR r 21.10 & r 34.1)- made between the parties to produce for inspection anything referred to in the SOC or witness statements and anything relevant to a fact in issue. Interrogatories- (UCPR Part 22) - Order to administer questions that requires verified answers. Must relate to an issue in dispute. Must be verified by affidavit. Can be tendered. Subpoena for production (UCPR Part 33)– Served usually on other parties requiring production if documents or attendance at court to give evidence. FISHING/Relevance – where is the line drawn? Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952)

TYPES OF INTER-PARTIES DISCOVERY 2 TYPES: preliminary discovery (usually to ascertain a defendant’s identity or cause of action) under Part 5 of the rules; and discovery in the course of proceedings under Part 21.

Order for Discovery – You require a court order to have discovery. It is not a matter of right but the court’s discretion. The rules provide for production of a verified list of documents (UCPR 21.3). These must be verified by affidavit. RELEVANCE: NSW r 21.1(2) “a document or matter is to be taken to be relevant to a fact in issue 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.”

CAN CHALLENGE CLAIM OF PRIVELEGE BY INTERLOCUTORY APPLICATION. MAKE APPLICATION TO THE COURT COURT WILL READ AND SAY YES PRIVELEGED YOU CANT HAVE IT OR NO IT IS NOT IS MAY BE ALLOWED.

NOTICE TO PRODUCE ORDER FOR DOCUMENTS (LISTS) DIFFERENT

Chapter 14 - Discovery

The term discovery is used to refer to the various procedures by which one party is able to obtain information and documents held by other parties. Facilitate a fair trial.

Part 21 Div 2 UCPR substitutes, for the right of general discovery on service of a notice on another party, a more limited right to require the production of specific documents. Any documents referred to in the other party's originating process, pleadings, affidavits or witness statements may be specified AS PER NSW r 21.10.

Unless the Court orders otherwise, the party served with the notice must then prodcue the documents into the other party's possession, custody or power, and provide any information that they may have as to the whereabouts of the specified documents that are not produced NSW r 21.11 A party to proceedings on a claim for damages for personal injuries or death is not required to complywith a notice to produce documents other than those referred to in court docs unless the court, for special reasons, orders otherwise NSW r 21.12.

Court order is necessary for discovery beyond the specific documents that may be sought by notice under NSW r 21.10 NSW 21.2 gives the court power to make an order for discovery but only in relation to a document within a specified class/classes, or to one or more samples of documents within such a class. A class of documents may be specified by "relevance to one or more facts in the issue", or "description of the nature of the docs" or "in other such manner as the court considers appropriate". NSW r 21.2(3) An order for discovery may not be made in respect of a document unless the document IS RELEVANT TO A FACT IN ISSUE - NSW r 21.2(4)

A PARTY ORDERED TO GIVE DISCOVERY MUST COMPLY WITH THE ORDER WITHIN 28 DAYS (OR A PERIOD SPECIFIED AND ORDERED BY THE COURT) This requires:  Preparation of a list  Verified list on oath  List sets out all of the docs within scope of the order that either currently in the possession of D or were within 6 months before the commencement of the proceedings.  List must indicate which of those documents are no longer in possession and any belief party may have s to where they are. IT MUST ALSO STATE WHICH DOCUMENTS ARE CLAIMED TO BE PRIVILEGED DOCS ON THE BASIS OF THAT CLAIM - NSW rr 21.3, 21.4

For discovery made under NSW r 21.2, discovering party must then make docs available for inspection. NSW r 21.5 - obligations of the discovery providing party.

SUPREME COURT OF NSW PRACTICE NOTE SC Eq 11 Disclosure in the Equity Division (22 March 2012) ('ON SC Eq 11') PN SC Eq 11 imposes additional limitations on applications for orders of disclosure documents. (does not apply to comm arbitration list)

PRIVELEGE

NSW r 21.3(2)(d) - when any claim to privilege is made in a list of documents, the rules require that the circumstances under which the privilege is claimed to arise be specified.

If any application brought before the court involves a challenge to a claim to privilege court may inspect the document to decide the validity of the claim NSW r 1.8 (This extends to any objection made to the production of a document) Evidence Act 1995 (NSW)

"DOCUMENT" can include audio recordings, video recordings, computer storage, hard drives etc. - Interpretation Act 1987 (NSW)

RELEVANCE

Parties have been obliged to give discovery of documents relating to any matter in question in the action. Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11QBD 55 [59]

PERUVIAN GUANO TEST for discovery WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 - relevance does not necessarily extended to documents that relate to claims which may be regarded as purely speculative.

(PERUVIAN GUANO TEST criticised for being too broad)

NEW SOUTH WALEs

If a party is seeking production for inspection of specified docs under NSW r 21.10, it is ALWAYS necessary that the docs be "relevant to a fact iin issue"

If discovery is pursuant to a court order for discovery of a class/classes of docs under NSW r 21.2, classes may be described in the order by description of the nature of the docs and period in which they were made or in any other manner that the court may consider appropriate....