Order 32 - Preliminary Discovery and Discovery from a Non-Party Flashcards
32.01 Definitions
In this Order, unless the context or subject matter otherwise requires—
applicant means applicant for an order under this Order;
description includes name, place of residence, place of business, occupation and sex of person against whom applicant desires to bring proceeding and whether person is individual or corporation;
possession means possession, custody or power.
32.02 Privilege (not operate to require production of privileged docs)
Order made under this Order shall not operate to require person subject to order to produce any document/answer any question which, because of privilege, not required to produce or answer.
- 03 Discovery to identify a defendant
- after r’able inquiries, applican’t can’t sufficiently identify a prospective D
- appears some person (likely) has facts/doc/thing that would assist
(1) The Court may make an order under (2) where—
(a) applicant, having made reasonable inquiries, unable to ascertain description of person sufficiently for purpose of commencing proceeding in Court against them (the person concerned); and
(b) it appears that some person has/is likely to have knowledge of facts, or has/is likely to have/has had or is likely to have had in possession any doc or thing, tending to assist in such ascertainment.
(2) The Court may order that the person, and in case of corporation, the corporation by an appropriate officer, shall—
(a) attend before Court to be orally examined in relation to description of person concerned;
(b) make discovery to applicant of all docs which are/have been in his/her/its possession relating to description of person concerned.
(3) Where Court makes an order under paragraph (2)(a), it may—
(a) order that the person/corporation against whom or which order is made shall produce to the Court on the examination any doc or thing in their/its possession relating to description of person concerned;
(b) direct that the examination be held before an Associate Judge.
(2) Notice be in Form 29A. (3) notice served before pleadings closed deemed to have been served on day after pleadings closed.
32.04 Party an applicant
R 32.03, with any necessary modification, applies where applicant is party to proceeding and wishes to make, in the proceeding, against a person who is not a party, a claim which the applicant could properly have made in the proceeding had the person been a party.
- 05 Discovery from prospective defendant
- reasonable cause certain person could be prospective D
- after r’ble inquiries, insufficient info to decide whether to commence
- r’ble cause to believe person has/likely have relevant document that would assist applicant
Where—
(a) there’s reasonable cause to believe applicant has/may have right to obtain relief from person whose description’s been ascertained;
(b) after making all reasonable inquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief; and
(c) there’s reasonable cause to believe that that person has/is likely to have/has had or is likely to have had in that person’s possession any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist the applicant to make the decision—
the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c).
32.06 Party an applicant
Rule 32.05, with any necessary modification, applies where—
(a) applicant is a party to a proceeding; and
(b) there’s reasonable cause to believe that applicant has/may have right to obtain against person who is not a party relief which applicant could properly have claimed in proceeding had person been a party.
32.07 Discovery from non-party (where appears person (likely) has doc relating to any question in proceeding)
On application of any party to proceeding Court may order that person who is not party and in respect of whom it appears that that person has/is likely to have/has had or is likely to have had in that person’s possession any doc which relates to any question in the proceeding shall make discovery to the applicant of any such doc.
32.08 Procedure
(1) Application under rr 32.03 or 32.05 shall be made by OM to which person against whom order is sought shall be made respondent.
(2) Application under rr 32.04, 32.06 or 32.07 shall be made by summons served on every party to proceeding and served personally on person against whom order is sought.
(3) Order makeable by AssJ under any of Rules referred to in (1)/(2).
(4) OM per (1) or summons per (2) shall be supported by affidavit—
(a) stating the facts on which the application is made; and
(b) specifying ordescribing the documents or any class of documents in respect of which the order is sought.
(5) Copy of supporting affidavit shall be served on every person on whom OM or summons is served.
32.09 Inspection of documents (29.09 applies with necessary modification)
R 29.09, with any necessary modification, applies to inspection of documents referred to in affidavit of docs made and served per Order as if affidavit were an affidavit of docs as referred to in r 29.09(1).
32.10 Directions as to documents
Rule 29.12, with any necessary modification, applies to the inspection of a document under this Order.
32.11 Costs
(1) On application under this Order, Court may make an order for costs and expenses of the applicant, of the person against whom order is made or sought and of any party to proceeding, including costs of—
(a) making and serving any affidavit of documents;
(b) producing any doc for inspection per r 32.09; or
(c) complying with any direction given under Rule 32.10.
(2) Court can order under this Order on condition that app. give dsecurity for costs/expenses of person against whom order’s made.
