Discovery

Question 1

What is the discovery process?

Answer 1

Discovery is the process where each side has to collect relevant documents, disclose those documents to the other side and allow other side to inspect those documents (r29.01). Purpose is to try to narrow issue in dispute so that parties are aware of the evidence each side may give/use/rely on.

Question 2

Discovery only applies to matters commenced by way of a

Answer 2

Writ.

Question 3

What is each party’s obligation to discovery?

Answer 3

1. to disclose all relevant documents
2. including documents that may adversely affect the party’s interests

Question 4

When should the notice of discovery be served?

Answer 4

• Once pleadings are closed, any party can serve a notice of discovery in Form 29A.

Question 5

What is the affidavit of documents?

Answer 5

• Within 42 days of discovery, party receiving notice must ‘make discovery’ by producing a sworn list of documents called ‘affidavit of documents’ in Form 29B, filed w court and sealed copy served on other party.
  Must include
  1. docs in possession of the party
  2. enumerate and describe each documents
  3. which docs are not in possession of the party and when the party parted ways with doc and where it thinks it is now
  4. if claiming privilege, sufficiently state the ground for privilege

Question 6

What is the scope of doscovery?

Answer 6

Per r29.01.01(3) documents are docs which come about as a result of a ‘reasonable search’:
* Party relies on;
* Documents that adversely affect the party’s own case;
* Documents that adversely affect another party’s case; and
* Documents that support another party’s case.

Question 7

Factors impacting a reasonable search

Answer 7

What a ‘reasonable search’ in will depend on:
* The nature and complexity of the proceeding;
* The number of documents involved;
* The ease and cost of retrieving a document;
* The significance of any doc to be found;
* Any other relevant matter.

Question 8

What documents do not need to be discovered?

Answer 8

Those docs that are already in possession of the other party.

Question 9

What happens if particular docs were not searched for?

Answer 9

• Party must include in affidavit a statement of particular documents were not searched for and why (r29.04(2))

Question 10

What is the test for discoverable documents?

Answer 10

• The test under r29.01.1 limits what documents are discoverable to those that directly advanced or damage a case.

Question 10

What are the court powers re disovery?

Answer 10

• S55(1) CPA court has the power to make any order or give any direction in relation to discovery that it considers necessary or appropriate.
  Eg. limit discovery or * Court may make an order that party make discovery at any stage, even if the pleadings are not closed (r29.07)

Question 11

How are documents inspected?

Answer 11

• A party upon whom affidavit of documents is served can inspect the documents by filing a notice to produce (Form 29C, r29.09(3)), requiring that the documents referred to in the affidavit be produced for inspection.
• Party receiving notice to produce must, within 7 days of being served notice, appoint a time and place within the next 7 days where the inspection can take place (r29.02(2)).

Question 12

How can discovery be challeneged?

Answer 12

Challenging under CPA
* Every party has a right, unless a court otherwise orders, to XXN or to seek leave to conduct oral examination of the deponent of an affidavit of documents where:
o There is reasonable basis for believing that the other party may be misinterpreting its discovery obligations; or
o There is a reasonable basis for believing that the other party may be failing to disclose discoverable documents.

Particular discovery – r29.08
* If there are grounds to believe that there are particular relevant documents in the party’s possession, court can order an affidavit stating:
o Whether such documents were ever in the party’s possession;
o If so, describing documents;
o If no longer in possession, stating what became of documents.

Further discovery
* Where a party fails to make discovery or fails to make sufficient arrangements for inspection or copying, or refuses to produce any document as required, Court may order the party to do such act as the case requires (r29.11).

Question 13

What is each party’s obligation to discovery?

Answer 13

• A party is under a continuing obligation of discovery even after an affidavit of documents (r29.15).
• Per s26(4) CPA the overarching obligation to disclose the existence of critical documents is an ongoing obligation.

Question 14

What will happen if a party fails to comply with discovery?

Answer 14

Notice of default
* If a party fails to make discovery within the time limited, the party entitled to the discovery may serve on that party a notice in Form 29D. If fail to make discovery within 7 days of notice of default, then Court may order that the proceeding be dismissed, or that the defendant’s defence be struck out.

Sanctions under CPA
* Per s56(2), court can do things like commence contempt of court proceedings; proceedings be adjourned with costs borne by person responsible; prevent party from taking steps; prohibit or limit use of documents; be compelled to give evidence.