SCR o 29 - Discovery and Inspection of Documents

Question 1

29.01 Application and definition

Answer 1

The normal procedure for discovery and inspection applies ONLY to a proceeding commenced by WRIT, except where the Rules otherwise provide.

Question 2

29.01.1 Scope of discovery

Answer 2

A party must discover any of the following documents of which it is, AFTER A REASONABLE SEARCH, aware at the time discovery is given:

• documents on which the party relies;
• documents that adversely affect the party’s own case;
• documents that adversely affect another party’s case;
• documents that support another party’s case.

BUT if a party giving discovery:

• reasonably believes that a document is already in the possession of the party to which discovery is given, they are not required to discover it; or
• has, or has had more than one copy of a discoverable document, they are not required to discover the copies by reason only of the fact that the original is discoverable.

Question 3

29.02 Notice for discovery

Answer 3

Where the pleadings are closed, any party may require any other to make discovery of all discoverable documents by serving NOTICE FOR DISCOVERY. A notice for discovery shall be in Form 29A.

Question 4

29.03 Discovery after notice

Answer 4

A party upon whom a notice for discovery is served shall make discovery of documents WITHIN 42 DAYS of service of the notice (or when Court otherwise orders).

Question 5

29.04 Affidavit of documents

Answer 5

An affidavit of documents should be in Form 29B and should —

• IDENTIFY the documents which are or have been in the party’s possession;
• ENUMERATE the documents in convenient order and describe each document (or group of documents) sufficiently to enable it to be identified;
• DISTINGUISH those documents which are IN POSSESSION from those that have been but are no longer in possession

o re documents no longer in possession—

• state when the party parted with the document; and
• the party’s belief as to what has become of it;
• where PRIVILEGE is claimed over a document, state sufficiently the GROUNDS of privilege.

Question 6

29.05 Order limiting discovery

Answer 6

In order to PREVENT UNNECESSARY DISCOVERY, the Court may order, before or after service of notice for discovery, that:

• discovery by any party shall NOT be required, or
• shall be limited to specific documents or classes of document, or to specific questions in the proceeding.

Question 7

29.06 Co-defendants and third party

Answer 7

A defendant or a third party who has pleaded shall be ENTITLED TO A COPY of any AFFIDAVIT OF DOCUMENTS served by another party on—

• the plaintiff by any other defendant to the proceeding;
• any other defendant by the plaintiff.

Question 8

29.07 Order for discovery

Answer 8

In a proceeding within r 29.01 (writ), the Court may ORDER that any party make DISCOVERY of docs to any other party/s EVEN IF the pleadings between any parties are not closed.

In a proceeding not within r 29.01 (OM etc), the Court may order any party to make discovery of documents at ANY STAGE.

Question 9

29.08 Order for particular discovery

Answer 9

Where, at any stage of a proceeding, it appears to the Court from evidence or from any document filed that there are GROUNDS FOR A BELIEF that A SPECIFIC DOCUMENT or class of document may be or may have been in a party’s possession, the Court may order that party to make and serve an affidavit of discovery stating—

• whether that document or any others of that class is or has been in possession; and
• if it has been but is no longer in possession, when the party parted with it, and their belief as to what has become of it.

Question 10

29.09 Inspection of docs referred to in the AoD

Answer 10

A party upon whom an affidavit of documents is served or supplied may, by NOTICE TO PRODUCE served on the party making the affidavit, require that the party produce the documents in that party’s possession referred to in the affidavit for inspection. Form 29C.

A party upon whom a notice to produce is served shall, within SEVEN DAYS after that service, serve a notice appointing a time WITHIN SEVEN DAYS after service when, and where, the documents may be inspected.

Question 11

29.12.1 Default notice

Answer 11

If a party required to make discovery FAILS TO MAKE TIMELY DISCOVERY, the party entitled to the discovery may serve a DEFAULT NOTICE in Form 29D.

If, within SEVEN DAYS after service of a default, the party in default does not make discovery, the Court may order—

• if the P is in default → that the proceeding be dismissed;
• if the D is in default → that their defence, if any, be struck out.

Question 12

29.15 Continuing obligation to make discovery

Answer 12

A party who has made an affidavit of documents is under a continuing obligation to make discovery of documents with respect to documents obtained after making the affidavit.