UCPR Rules 4 (Disclosure) (209-219)

Question 1

Rule 209

Answer 1

Application of part

(1)This part applies to the following types of proceeding—
(a)a proceeding started by claim;
(b)a proceeding in which the court has made an order under rule 14 ordering the proceeding to continue as if started by claim;
(c)if the court directs—a proceeding started by application.

(2)This part applies to all parties, including a party who is a young person and a litigation guardian of a young person.

(3)This part does not affect—
(a)the right of a party to inspect a document if the party has a common interest in the document with the party who has possession or control of the document; or
(b)another right of access to the document other than under this part.

Question 2

Rule 210

Answer 2

Nature of disclosure

In a proceeding, disclosure is the delivery or production of documents in accordance with this division.

Question 3

Rule 211

Answer 3

Duty of disclosure

(1)A party to a proceeding has a duty to disclose to each other party each document—
(a)in the possession or under the control of the first party; and
(b)directly relevant to an allegation in issue in the pleadings; and
(c)if there are no pleadings—directly relevant to a matter in issue in the proceeding.

Note—
Under the Acts Interpretation Act 1954, schedule 1—
document includes—
(a)any paper or other material on which there is writing; and
(b)any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and
(c)any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).

(2)The duty of disclosure continues until the proceeding is decided.

(3)An allegation remains in issue until it is admitted, withdrawn, struck out or otherwise disposed of.

Question 4

Rule 212

Answer 4

Documents to which disclosure does not apply

(1)The duty of disclosure does not apply to the following documents—
(a)a document in relation to which there is a valid claim to privilege from disclosure;
(b)a document relevant only to credit;
(c)an additional copy of a document already disclosed, if it is reasonable to suppose the additional copy contains no change, obliteration or other mark or feature likely to affect the outcome of the proceeding.

(2)A document consisting of a statement or report of an expert is not privileged from disclosure.

Question 5

Rule 213

Answer 5

Privilege claim

(1)This rule applies if—
(a)a party claims privilege from disclosure of a document; and
(b)another party challenges the claim.

(2)The party making the claim must, within 7 days after the challenge, file and serve on the other party an affidavit stating the claim.

(3)The affidavit must be made by an individual who knows the facts giving rise to the claim.

Question 6

Rule 214

Answer 6

Disclosure by delivery of list of documents and copies

(1)Subject to rules 216 and 223, a party to a proceeding performs the duty of disclosure by—
(a)delivering to the other parties in accordance with this division a list of the documents to which the duty relates and the documents in relation to which privilege from disclosure is claimed (the list of documents); and
(b)at a party’s request, delivering to the party copies of the documents mentioned in the list of documents, other than the documents in relation to which privilege from disclosure is claimed.

(2)The times for the delivery of lists under subrule (1)(a) are as follows—
(a)if an order for disclosure is made before the close of pleadings—the times stated in the order;
(b)if an application for a summary decision is made within 28 days after the close of pleadings and the proceeding is not entirely disposed of when the application is decided—within 28 days after the decision;
(c)if, as a result of a further pleading or amended pleading, additional documents are subject to disclosure—within 28 days after the further pleading or amended pleading is delivered;
(d)if the first occasion on which a document comes into the possession or under the control of the party, or is located by the party, happens after a time mentioned in paragraph (a) to (c)—within 7 days after the occasion happens;
(e)otherwise—within 28 days after the close of pleadings.

(3)A copy of a document requested under subrule (1)(b) must be delivered within 14 days after the request.

Question 7

Rule 215

Answer 7

Requirement to produce original documents

Despite rule 214, a party (the first party) may require another party to produce for inspection of the first party specified original documents of which copies are, or are to be, disclosed.

Question 8

Rule 216

Answer 8

Disclosure by inspection of documents

(1)This rule applies if—
(a)it is not convenient for a party to deliver documents under rule 214 because of the number, size, quantity or volume of the documents or some of the documents; or
(b)a requirement for production of documents is made of a party under rule 215.

(2)If this rule applies, the party must effect disclosure by—
(a)producing the documents for inspection at the time specified in rule 214(2) or (3); and
(b)notifying the other party in writing of a convenient place and time at which the documents may be inspected.

Question 9

Rule 217

Answer 9

Procedure for disclosure by producing documents

(1)This rule applies if a party discloses documents by producing them.

(2)The documents must be—
(a)contained together and arranged in a way making the documents easily accessible to, and capable of convenient inspection by, the party to whom the documents are produced; and
(b)identified in a way enabling particular documents to be retrieved easily on later occasions.

(3)The party producing the documents must—
(a)provide facilities (including mechanical and computerised facilities) for the inspection and copying of the documents; and
(b)make available a person who is able to explain the way the documents are arranged and help locate and identify particular documents or classes of documents; and
(c)provide a list of the documents for which the party claims privilege.

(4)The arrangement of the documents when in use—
(a)must not be disturbed more than is necessary to achieve substantial compliance with subrule (2); and
(b)if the party to whom the documents are produced for inspection so requires—must not be disturbed at all.

(5)For subrule (2), the documents may—
(a)be contained by files, folders or in another way; and
(b)be arranged—
(i)according to topic, class, category or allegation in issue; or
(ii)by an order or sequence; or
(iii)in another way; and
(c)be identified by a number, description or another way.

(6)The person made available under subrule (3)(b) must, if required by the person inspecting the documents—
(a)explain to the person the way the documents are arranged; and
(b)help the person locate and identify particular documents or classes of documents.

Question 10

Rule 219

Answer 10

Costs

Subject to rule 220, a party who does not make use of the opportunity to inspect documents under a notice under rule 216 may not inspect the documents unless the party tenders an amount for the reasonable costs of providing another opportunity for inspection or the court otherwise orders.