Part 4.3 - Disclosure and Discovery Flashcards
S54 Discovery of documents to be in accordance with rules of Court (unless court otherwise orders)
S54 Discovery of documents to be in accordance with rules of Court (unless court otherwise orders)
S55 Court orders for discovery (any appropriate, including order re: classes - relieving, limiting, staging, expanding, managing doc lists, inspection by time, who gets discovery, relieving ADM; provide facilities; give facilitating person; pay re; discovery costs)
(1) Court may make any order or give any directions in relation to discovery that it considers necessary or appropriate.
(2) Without limiting (1), court may make any order or give any directions—
(a) requiring a party to make discovery to another party of—
(i) any documents within a class or classes specified in the order; or
(ii) one or more samples of documents within a class or classes, selected in any manner which the court specifies in the order;
(b) relieving a party from the obligation to provide discovery;
(c) limiting the obligation of discovery to—
(i) a class or classes of docs specified in the order; or
(ii) documents relating to 1+ specified facts or issues in dispute; or
(iii) some or all of the issues set out in a statement of issues filed;
(d) that discovery occur in separate stages;
(e) requiring discovery of specified doc classes pre-pleadings closes;
(f) expanding a party’s obligation to provide discovery;
(g) requiring a list of documents be indexed or arranged in a particular way;
(h) requiring discovery or inspection of documents to be provided by a specific time;
(i) as to which parties are to be provided with inspection of documents by another party;
(j) relieving a party of obligation to provide an affidavit of documents;
(k) modifying or regulating discovery of documents in any other way court thinks fit.
(3) Court may make any order/give any directions requiring a party discovering docs to—
(a) provide facilities for inspection and copying of documents, including copying and computerised facilities;
(b) make available a person who is able to—
(i) explain the way the documents are arranged; and
(ii) help locate and identify particular docs/classes of documents.
(4) Court may order or direct a party to pay to another party amount specified/determined by, or in accordance with, the order or direction in relation to discovery costs in any manner considered appropriate by court, including, but not limited to, payment in advance of an amount to other party for some or all of estimated discovery costs.
(5) Without limiting any other power of court to make costs orders, a court may order or direct that costs payable under an order or a direction under (4) are recoverable as costs in the proceeding.
S55A Provision of all docs in party’s possession to other party by consent
to provide all docs in its possession/control which relate to issues in proceeding to any other party on basis that privilege not waived.
(2) The court may make order/direction under (1) if satisfied that—
(a) giving receiving party access to docs is not likely to give rise to any substantial prejudice to the party providing the documents; and
(b) documents can be identified and located without unreasonable cost to the party providing the documents; and
(c) documents are identifiable by general description or category.
(3) An order or direction under (1) may—
(a) specify that documents are to be provided—
(i) in a searchable electronic format, if practicable; or
(ii) in any other manner/format that court considers appropriate; and
(b) include any other order/direction court thinks fit, including, not limited to, any order/direction re: maintenance of privilege claims.
(4) Subject to (5), if an order is made or a direction is given under (1), party providing documents to which order or direction applies, at that party’s own expense, may exclude any privileged docs prior to providing docs to other party in accordance with order or direction.
(5) A party who excludes any privileged docs in accordance with (4) must provide to other party a list of docs for which privilege is claimed which specifies grounds on which privilege is claimed.
(6) Order/direction under (1) may apply to docs whether or not they are required to be discovered in accordance with any court rules.
(7) Nothing here limits any other court power under this Part or rules
S55B Affidavit of document management - processes of doc management; info re vol/number/arrangement/storage of docs - additional to affidavit of docs
(1) To assist in making any appropriate orders/directions in relation to discovery, court may order/direct party provide to court an ADM.
(2) An ADM may include the following—
(a) the volume, manner of arrangement or storage, type or location of discoverable documents;
(b) the party’s processes of document management.
(3) ADM is additional to any affidavit of docs which may be required.
S55C Order for oral examination (re ADM)
(1) Court can order that ADM deponent be orally examined re: it.
(2) A court may order that an appropriate person (other than ADM deponent) who’s able to provide information in relation to the matters dealt with in ADM be subject to oral examination re: those matters.
(3) An order under (1)/(2) may—
(a) specify time, place and manner of conducting exam; and
(b) specify whether oral exam is to be conducted by—
(i) the court; or
(ii) court constituted by a judicial officer other than the original; and
(c) specify who’s to pay costs of oral exam in first instance; and
(d) include any other orders/directions court considers appropriate.
(4) Nothing here limits s 57 or any other court powers re: oral exam
S 56 Court may order sanctions (on non-compliance with obligations/order, delaying/frustrating conduct) (contempt; adjourning; costs; preventing step; prohibiting use; awarding compo; dismissing any part of claim/defence, referral to LSC)
(1) Court may make any order/ direction appropriate if it thinks there’s been—
(a) failure to comply with discovery obligations; or
(b) failure to comply with any order/direction of court re: discovery; or
(c) conduct intended to delay/frustrate/avoid discovery of discoverable docs.
(2) Without limiting (1), a court may make an order or give directions—
(a) that proceedings for contempt of court be initiated;
(b) adjourning the CP, with costs of that adjournment to be borne by the person responsible for the need to adjourn the proceeding;
(c) re: costs, including indemnity cost orders against any party/LP who’s responsible for/who aids+abets, any conduct referred to in (1);
(d) preventing a party from taking any step in the civil proceeding;
(e) prohibiting or limiting the use of documents in evidence;
(f) in respect of facts taken as established for purposes of CP;
(g) awarding compensation for financial/other loss arising out of any conduct referred to in (1);
(h) in respect of any adverse inference arising from any conduct referred to in (1);
(i) compelling person to give evidence in connection with any conduct referred to in subsection (1), including by way of affidavit;
(j) dismissing any part of the claim or defence of a party who is responsible for any conduct referred to in subsection (1);
(k) in relation to the referral to an appropriate disciplinary authority for disciplinary action to be taken against any LP who is responsible for, or who aids and abets, any conduct referred to in (1).
S 57 X-exam regarding discovery obligations (if reasonable belief are misinterpreting/failing to disclose)
Unless court orders otherwise, any party to a CP may X-exam or seek leave to conduct oral examination of deponent of affidavit of documents prepared by/on behalf of any other party to proceeding if there’s reasonable basis for the belief that the other party may be—
(a) misinterpreting the party's discovery obligations; or
(b) failing to disclose discoverable documents.
S 58 Interaction with Evidence (Miscellaneous Provisions) Act 1958 (nothing derogates from operation of Div 9 of Pt III)
S 58 Interaction with Evidence (Miscellaneous Provisions) Act 1958 (nothing derogates from operation of Div 9 of Pt III)
S 59 – Interaction with powers (in addition to, don’t derogate)
Powers of court under this Part are in addition to, and do not derogate from, any powers court has under rules of court in relation to discovery or disclosure of documents.
