SCR o 32 - Preliminary discovery / discovery from non-party

Question 1

32.02 Privilege

Answer 1

An order made under O32 does not override the rules of privilege

i.e. an order that a person give discovery by producing documents or answering questions does not destroy any objection which the person has on the ground of privilege to refuse to so produce or answer.

Question 2

32.03 Discovery to identify a defendant (OM)

Answer 2

Where discovery is to ascertain the identity of a potential defendant, applicant must show:

• that having made reasonable enquiries the applicant is UNABLE TO ASCERTAIN DESCRIPTION OF A PERSON for the purpose of commencing a proceeding; AND
• it appears that SOME PERSON HAS / IS LIKELY TO HAVE KNOWLEDGE of facts, or has or is likely to have or have had in that person’s possession any DOCUMENT or thing tending to assist in such ascertainment (of identity).

The Court may then ORDER that the person (or officer of corporation) shall—

• be ORALLY EXAMINED in court in relation to the description of the person concerned; or
• MAKE DISCOVERY to the applicant of all documents which are or have been in his, her or its possession relating to the description of the person concerned.

Question 3

R32.05 Discovery from prospective defendant (OM)

Answer 3

In the case where discovery is sought against a KNOWN POTENTIAL DEFENDANT, the applicant must show:

• that there is REASONABLE CAUSE TO BELIEVE that the applicant has or may have the right to obtain relief in the Court from A PERSON; AND
• after making all reasonable enquiries, the applicant has NOT SUFFICIENT INFORMATION to enable the applicant to decide whether to commence a proceeding; AND
• there is reasonable cause to believe that the PERSON has or is likely to have had in their POSSESSION any DOCUMENT relating to the question whether the applicant has the right to obtain the relief that inspection of the document would assist the applicant to make the decision.

Question 4

32.07 Discovery from non-party (SUMMONS)

Answer 4

On the APPLICATION OF ANY PARTY, the Court may order that a NON-PARTY whom it appears has / had in their possession any document which relates to ANY question in the proceeding shall make discovery to the applicant of any such document.

Question 5

32.09 Inspection of documents (preliminary discovery / discovery from non-party)

Answer 5

R29.09 (Discovery) applies to the inspection of the documents referred to in an affidavit of documents made and served in accordance with this Order as if the affidavit were an affidavit of documents as referred to in Rule 29.09(1).

Question 6

32.11 Costs

Answer 6

The Court may make an ORDER FOR COSTS AND EXPENSES (whether of the applicant, the respondent, or of any other party), including the costs of producing any document for inspection; or complying with any direction given.

The Court may make an order that the APPLICANT give SECURITY FOR THE COSTS AND EXPENSES of the person against whom the order is made.