There are three routes to documents in Order 9 of the National Court Rules 1983: the notice, the general order, and the particular order.
Rules 1 and 2
Rule 1(1) — where the pleadings between the parties are closed, a party may, by notice for discovery in Form 30 filed and served, require the party served to give discovery of documents, with or without verification.
Rule 2(1) — the party required must give discovery within such time, not being less than 14 days after service of the notice, as may be specified in the notice.
The notice itself fixes the deadline. Fourteen days is the floor. In a document-heavy case, specifying a realistic longer period is more likely to produce a proper list than an unrealistic short one that ends in an application.
No leave is required, and no application. Serve the notice, and the obligation arises.
The choice in Rule 2
| Without verification | With verification | |
|---|---|---|
| What is delivered | A list of documents under Rule 6 — r 2(2) | The list and an affidavit verifying it — r 2(3) |
| Weight | Signed, and certified by the solicitor under r 6(8) | Sworn — a false statement carries the consequences of a false affidavit |
| When to use it | The ordinary case | Where you doubt the completeness of what has been listed |
| Can you ask twice? | Yes — r 1(2) allows a party to require verification notwithstanding that he has previously required discovery without it | |
The party; or, where the party is a disabled person, his next friend or guardian at law; where a corporation, a member or officer; where a body of persons suing or sued in the name of the body or an officer, a member or officer; and where the Independent State of Papua New Guinea or an officer sued in his official capacity, an officer of the State.
Rule 8(3) — the party shall choose a person who is qualified and has knowledge of the facts. And under Rule 8(2), where the affidavit is ordered, the Court may specify by name the person to make it, or the class of persons from whom the deponent may be chosen.
Where a corporate or State party puts up a deponent with no real knowledge, the answer is to ask the Court to specify who must swear. That power exists precisely because a verifying affidavit from someone who knows nothing is worth little.
Rule 4
Where a plaintiff claims relief against two or more defendants and requires a defendant to give discovery, that defendant shall serve his list of documents and affidavit (if any) not only on the plaintiff but also on each other defendant who has filed a defence.
Co-defendants often have competing interests — one may be running a cross-claim for contribution against another. Rule 4 means each sees what the others have disclosed without having to serve separate notices.
Note the qualification: only defendants who have filed a defence.
Rule 5 — discovery by order
The Court may, at any stage of any proceedings, order any party to file and serve on any other party —
(a) a list in accordance with Rule 6 of documents relating to any matter in question in the proceedings; or
(b) such a list verified by affidavit.
Because Rule 1(3) excludes claims for damages arising out of death or bodily injury from the notice procedure, Rule 5 is how discovery is obtained in those cases — by application, or by agreement between the parties recorded in directions.
Rule 5 is also the answer where the pleadings have not closed but discovery is genuinely needed, since it operates at any stage.
Rule 7 — targeting a document
Where at any stage it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceedings that there are grounds for a belief that some document or class of document relating to any matter in question may be or may have been in the possession, custody or power of a party, the Court may order that party —
(a) to file an affidavit stating whether that document or any document of that class is or has been in his possession, custody or power and, if it has been but is not, when he parted with it and what has become of it; and
(b) to serve the affidavit on any other party.
Rule 7 is directed at a specific document or class, not at discovery generally. The applicant must show grounds for a belief — from evidence, from the circumstances, or from documents already filed — that the document exists or existed.
What the order produces is an affidavit on oath answering the question. A party who says the document never existed must say so under oath, with the consequences that follow if that is untrue. Where it once existed and no longer does, they must explain what became of it.
Rule 7 is often the more effective application, because it is precise. A general complaint that discovery is inadequate is much harder to make good than a focused request about an identified document. On what to do next, see failure to give discovery and discovery from a non-party.
Sources
- National Court Rules 1983 — O 9 rr 1–10; Forms 30, 31
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.