Further Civil Rules Flashcards
How do you the other side to produce documents at trial?
r 227 Production of documents at trial
You provide notice to otherside to produce documents that are disclosed under this subdivision
What is the consequence of a party having to disclose a document at trial under r 227
The document is admissible against the disclosing party as relevant and as being what it purports to be
How do ordinary rules of evidence interact with rule 227?
They are not circumvented by the rule, still may require witnesses, cannot tender document that is obvious hearsay.
What are interogatories
written questions about matters in issue, served on a party required to be answered on oath
What is the rationale and purpose of interogatories?
Permits a party to prove facts they otherwise could not. And potentially allow a party to extract admissions, confining the issue in dispute. Are appropriate where a party does not have knowledge to advance their case
How to serve interogatories upon another party?
r 229 Delivery of interrogatories
Can be served at any time with leave of the court on a party or (non-party to determine if they should be a party in the proceeding). Limited to 30 questons, unless court otherwise allows.
When is the best time to serve interrogatories?
r 229(1) can be done at anytime however in reality, court is unlikely to grant leave prior to the conclusion of disclosure.
What empowers the court to grant leave for interrogatories?
r 230 Granting leave to deliver interrogatories
Can grant with or without notice to other party.
Can only grant if there is no other less expenssive alternative for the applicant to prove the matter.
Cannot be granted if proceedings in Mags Court for less than $7500.
What needs to be include in an application seeking leave for interrogatories?
r 230(2)
Draft of the questions should be annexed to the application.
What is considered when deciding an application for leave for interrogatories?
Quite special circumstances need exist, however the presence of a cheaper alternative to prove the matter will not prevent the granting of leave in of itself.
What are the limits of evidence sought by interrogatories?
Questions must relate to facts in issue revealed by pleadings etc. Extraneous answers sought “fishing expeditions” (including to determine if some other cause of action might exist) are not permitted
What are examples of permissible and impermissible interrogatories?
Account from fiduciary - permissible
Question of law/questions within the court’s jurrisdiction to determine- not permissible
Opinions - only if it is opinion that can be given by a witness ordinarily as it falls within ordinary experience, and not to be subject of expert opinion
Facts not in dispute - not permissible
Question that presumes fact - not permissible (unless admitted)
Documents - limited to ancillary matters about doc’s existence if it no longer exists (if it exists it can simply be proved under 233(1)(c)
Conversations - to determine time, date, place and ID of speakers, also words spoken need to be material
What rule provides for answering interrogatories?
r 231 Answering interrogatories
Must be answered within time specified by court and by a statement answerthing them with a vertifying affidavit as to the statement.
If party is claiming relief against multiple defendants, must be sent to each defendant that has filed ntoice to defend.
What must you do when doing your statement in asnwer to interrogatories?
r 232 Statement in answer to interrogatories.
Must answer the substance of each question, or object to it. Answer must be direct, non evasive, non technical. Objection must be set out .
When answering interrogatory is it sufficient to answer the question to the best of the party’s knowledge?
No, must not only answer to best of the party’s knowledge, information, belief but must also demonstrate that all proper reasonable enquiries have been made.
What does the court think of cheek when answering interrogatories?
Not on. Parties have obligations to the court and opponenets to do their best to be helpful, not grudging or clever. If a question has typos, doesn’t matter as long as the intention is clear, it should still be answered.
When can you object to interoggaroties? What rule?
r 233 Grounds for objection to answering interrogatories
Not relevant to a matter in question.
Won’t enable the court to decide a matter in question.
Likely to be at trial, a simple, easier, inexpensive way of proving the matter.
Vexatious or oppressive.
privlege
Is there another way, aside from objection, to avoid answer interrogatories? What rule?
r 234 Unnecessary Interrogatories
Party can apply to court to be relived of answering unnecessary interrogatories.
Who can swear the affidavit that accompanies the statement in answer of interrogatories? What rule?
r 234 Identity of individual by whom verifying affidavit to be made
Person, guardian (legal incapacity), proper officer for corp, etc.
What is the recourse/court’s power where a party fails to answer interrogatories, or gives inadequate answers ? What rule?
r 236 Failure to answer interrogatories
Court can order answer/further answer be given.
Person ordered to attend to give evidence orally.
Order a person qualified to do the accompanying statement affidavit (if OG person not qualified).
What is the test for the court when considering to order further answers to interrogatories? What rules is concerned?
r 236(2)
Twofold test:
Whether the interrogatory is proper, and
whether an answer to it is reasonable necessary for the proper and efficient conduct of the proceeding.
Answers merely not being helpful to the interrogator, are not suffcient.
What is the consequence of failing to answer interrogatories, following a court order under r 236(2) to answer them? What rule?
r 237 Failure to comply with court order
Party can apply on notice to that part/all of proceedings are stayed/dismissed or obtain judgement or that the interrogatories and affidavit be done within specified time. And of course, contempt.
What can you do with answered interrogatories at trial? What rule?
r 238 Use of Answers.
Can tender them at trial as they are admissions of fact admissible against their maker.. Court may require all of them be tendered.
who can interrogatory/disclosure orders be served on, and what is the consequence of noncompliance with those?
r 240 Service on solicitors
Service can be done on solicitors. Parties liable to contempt. If solicitor does not notify their own party, solicitor is liable for contempt.
What can you do if you want disclosure of documents from non-parties? What rule?
R 242 Non-party disclsoure
Can serve notice on non party to produce to applicant (within 14 days) documents; directly relevant to allegation in issue, inpossession of, and a doc that the party be required to serve at trial.
When may a non-party disclosure request not be permitted? What rule is concerned
r 242 Non-party disclosure
The documents sought must relate to allegations in issue. “Fishing expeditions” are not permitted.
Can you do a non-party disclsoure request prior to the close of pleadings? What rule is concerned?
r 242(2) provides that the production not required if there is a alternative simple/inexpensive way of proving the matter the doc would prove, and this could be done by virtue of the pleadings and responses (i.e. admissions of fact) and what is in issue would not yet have formalised.
What is the scope of the duty to disclose of a non-party subject to non-party disclosure? What rule is concerned
r 242(4) disclosure under this division is not an ongoing duty. The non-party need only respond to the immediate request.