UCPR Rules 6 (Disclosure) (243-250)

Question 1

Rule 243

Answer 1

243
Form and service of notice

(1)A notice of non-party disclosure must—
(a)be issued in the same way as a claim; and
(b)state the allegation in issue in the proceeding about which the document sought is directly relevant; and
(c)include a certificate signed by the applicant’s solicitor, or if the applicant acts personally, by the applicant, stating that there is not available to the applicant another reasonably simple and inexpensive way of proving the matter sought to be proved by the document; and
(d)be in the approved form; and
(e)be served in the same way as a claim and within 3 months after its issue.

(2)However, the applicant may serve the respondent only after the applicant has served all other persons who are required to be served under rule 244.

Question 2

Rule 244

Answer 2

244
Others affected by notice

(1)The applicant must, within 3 months after the issue of a notice of non-party disclosure, serve a copy of the notice on—
(a)a person, other than a party, about whom information is sought by the notice; and
(b)if the applicant knows the respondent does not own a document required to be produced—the owner of the document.

(2)Subrule (1) does not apply if the applicant’s solicitor—
(a)believes, on reasonable grounds, that a person who would otherwise be required to be served under subrule (1) is likely to fabricate evidence or perpetrate fraud if the person becomes aware of the notice; and
(b)has completed a certificate in the approved form stating that the solicitor has that belief and that the interests of justice are likely to be jeopardised if the person were served with the notice.

(3)A certificate by the applicant’s solicitor under subrule (2) must be tendered to the court after the close of the applicant’s case.

(4)Further, subrule (1)(b) does not apply if, after reasonable inquiries, the applicant can not identify the owner of the document.

(5)The applicant must write the name and address of anyone who must be served under this rule on the notice and on all copies of the notice.

Question 3

Rule 245

Answer 3

245
Objection to disclosure

(1)The respondent, or a person who has been served with a notice of non-party disclosure under rule 244, may object to the production of some or all of the documents mentioned in the notice within 7 days after its service or, with the court’s leave, a later time.

(2)Also, another person who would be affected by the notice and who has not been served may object to the production of some or all of the documents mentioned in the notice at any time with the court’s leave.

(3)The objection must—
(a)be written; and
(b)be served on the applicant; and
(c)if the person objecting (the objector) is not the respondent—be served on the respondent; and
(d)clearly state the reasons for the objection.

(4)The reasons may include, but are not limited to, the following—
(a)if the objector is the respondent—the expense and inconvenience likely to be incurred by the respondent in complying with the notice;
(b)the lack of relevance to the proceeding of the documents mentioned in the notice;
(c)the lack of particularity with which the documents are described;
(d)a claim of privilege;
(e)the confidential nature of the documents or their contents;
(f)the effect disclosure would have on any person;
(g)if the objector was not served with the notice—the fact that the objector should have been served.

Question 4

Rule 246

Answer 4

246
Objection stays notice

Service of an objection under rule 245 operates as a stay of a notice of non-party disclosure.

Question 5

Rule 247

Answer 5

247
Court’s decision about objection

(1)Within 7 days after service of an objection under rule 245, the applicant may apply to the court for a decision about the objection.

(2)The court may make any order it considers appropriate including, but not limited to an order—
(a)lifting the stay; or
(b)varying the notice of non-party disclosure; or
(c)setting aside the notice.
(3)Unless the court otherwise orders, each party to an application to decide an objection must bear the party’s own costs of the application.
(4)The court may make an order for subrule (3) if, having regard to the following, the court considers that the circumstances justify it—
(a)the merit of the objector’s objections;
(b)the public interest in the efficient and informed conduct of litigation;
(c)the public interest in not discouraging objections in good faith by those not a party to the litigation.

Question 6

Rule 248

Answer 6

248
Production and copying of documents

(1)Unless the operation of a notice of non-party disclosure is stayed, and subject to any order under rule 247(2), the respondent must produce the document specified in the notice for inspection by the applicant at the place of business of the respondent, or the respondent’s solicitor, within ordinary business hours or at another place or time agreed by the applicant and respondent.

(2)If the respondent does not comply with subrule (1), the applicant may apply to the court who may order compliance and make another order the court considers appropriate.

(3)The applicant may copy a document produced under this division.

Question 7

Rule 249

Answer 7

249
Costs of production

(1)Subject to rule 247(3), the applicant must pay the respondent’s reasonable costs and expenses of producing a document.

(2)Within 1 month after producing a document, the respondent must give to the applicant written notice of the respondent’s reasonable costs and expenses of producing it.

(3)Unless the court otherwise orders, the applicant may apply to the registrar within 1 month after receiving written notice under subrule (2) for assessment of the costs and expenses.

Question 8

Rule 250

Answer 8

250
Inspection, detention, custody and preservation of property

(1)The court may make an order for the inspection, detention, custody or preservation of property if—
(a)the property is the subject of a proceeding or is property about which a question may arise in a proceeding; or
(b)inspection of the property is necessary for deciding an issue in a proceeding.

Note—
Under the Acts Interpretation Act 1954, schedule 1—
property means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action.

(2)Subrule (1) applies whether or not the property is in the possession, custody or power of a party.

(3)The order may authorise a person to do any of the following—
(a)enter a place or do another thing to obtain access to the property;
(b)take samples of the property;
(c)make observations and take photographs of the property;
(d)conduct an experiment on or with the property;
(e)observe a process;
(f)observe or read images or information contained in the property including, for example, by playing or screening a tape, film or disk;
(g)photograph or otherwise copy the property or information contained in the property.

(4)In the order, the court may impose the conditions it considers appropriate, including, for example, a condition about—
(a)payment of the costs of a person who is not a party and who must comply with the order; or
(b)giving security for the costs of a person or party who must comply with the order.

(5)The court may set aside or vary the order.