Discovery obligations are not advisory. Order 9 Rule 15 of the National Court Rules 1983 supplies the sanctions.
Order 9 Rule 15(1)
Where a party makes default in filing or serving a list of documents or affidavit or other document, or in producing any document as required by or under this Division, the Court may make such order as it thinks fit, including —
(a) if the party in default is a plaintiff — an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed; or
(b) if the proceedings were commenced by writ and the party in default is a defendant — an order that his defence be struck out and that judgement be entered accordingly.
For a plaintiff, dismissal ends the claim — and if the limitation period has run, ends it for good.
For a defendant, striking out the defence and entering judgment produces the same result as if the writ had been ignored. See default judgment.
The words “such order as it thinks fit, including” make paragraphs (a) and (b) illustrations rather than limits. Lesser orders are available and are far more common: a fresh time to comply, an order for costs, an order under Rule 7 requiring an affidavit about a particular document, or an order that the defaulting party may not rely at trial on documents they failed to disclose.
What the Court weighs
The Court will ordinarily consider, in this order:
- Whether the obligation was clear. Was the notice for discovery valid, and did it allow the minimum 14 days required by Rule 2(1)?
- Whether an order was made, and if so what it required. Default in complying with an order is more serious than default in answering a notice.
- The explanation. Documents in another province, a change of lawyers, illness — these are met by an extension, not a dismissal.
- Whether the default is deliberate or continuing. Repeated non-compliance after an unless order is the situation in which paragraphs (a) and (b) are actually applied.
- Prejudice. Whether a fair trial remains possible.
A party facing such an application should comply first and explain second. Compliance before the return date changes the application from one about sanctions to one about costs.
The Court shall not make an order under this Division for the filing or service of any list of documents or affidavit or other document, or for the production of any document, unless satisfied that the order is necessary at the time when the order is made.
So an applicant must show the order is necessary now. Applications made for tactical advantage, or for documents that will not affect the issues, fail at this threshold whatever the other side’s conduct.
Rule 15(2) and (3)
(2)(a) An order under the Division need not, for the purposes of enforcement by committal or sequestration, be served personally.
(2)(b) But if it has not been served personally, it shall not be enforced by committal of any person or by sequestration of property if that person shows that he did not have notice or knowledge of the order within sufficient time for compliance.
Where a party has a solicitor, and an order under the Division is served by leaving a copy at the office of, or posting it to, the solicitor or his agent, the solicitor shall, if he fails without reasonable cause to notify the party of the order, be guilty of professional misconduct.
Very few rules of court declare conduct to be professional misconduct. This one does, and the reason is plain: because personal service is dispensed with for enforcement purposes, the client’s protection against committal depends entirely on the solicitor passing the order on.
Read with sub-rule (2)(b), the scheme is coherent. The client who genuinely never learned of the order cannot be committed — and the solicitor who failed to tell them answers for it. On committal generally, see contempt of court.
Beyond Rule 15
| Situation | Response |
|---|---|
| A list that omits a document you believe exists | Order for particular discovery — an affidavit under Rule 7 stating whether it is or has been held |
| A doubtful privilege claim | Production under Rule 10, with the Court inspecting under Rule 13 |
| A list you doubt is complete | Require discovery with verification — permitted by Rule 1(2) even after discovery without it |
| A deponent with no real knowledge | Ask the Court under Rule 8(2) to specify who must swear |
| Documents produced late, at or near trial | Object to their admission; seek costs; seek an adjournment at the defaulting party’s expense |
| A party who has simply stopped | Dismissal for want of prosecution |
Discovery disputes are best dealt with as part of case management rather than by a series of motions. Ask for directions at a directions hearing, with a timetable and, if necessary, an order that the consequences in Rule 15(1) follow on further default. That is cheaper for everyone and gives the defaulting party a clear last chance.
Sources
- National Court Rules 1983 — O 9 rr 1, 2, 7, 8, 10, 13–15; O 12 Div 3; O 14 Div 6
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.