Order 9 Rule 6 of the National Court Rules 1983 is unusually prescriptive. Eight sub-rules govern a single document.
Order 9 Rule 6
(1) Unless the Court otherwise orders, the list shall conform to the requirements of this Rule and be in Form 31.
(2) It shall enumerate the documents which are or have been in the possession, custody or power of the party making the list.
(3) It shall enumerate the documents in a convenient sequence and as shortly as possible, but shall describe each document — or, for a group of documents of the same nature, describe the group — sufficiently to enable it to be identified.
(4) Where privilege from production is claimed, the party shall in the list sufficiently state the grounds of the privilege.
(5) It shall distinguish those documents which are in the party’s possession, custody or power from those that have been but are not.
(6) As to any document no longer held, it shall state when he parted with the document and what has become of it.
(7) It shall appoint a time within seven days after service of the list when, and a place where, the documents may be inspected.
(8) Where the party has a solicitor, the solicitor shall certify on the list that, according to his instructions, the list and the statements in it are correct.
The conventional structure
| Part | Contents | Sub-rule |
|---|---|---|
| Schedule 1, Part 1 | Documents in possession, custody or power, which the party does not object to producing | (2), (5) |
| Schedule 1, Part 2 | Documents in possession, custody or power for which privilege is claimed, with the grounds stated | (4) |
| Schedule 2 | Documents which have been but are no longer held — with when the party parted with them and what became of them | (5), (6) |
| Notice of inspection | The time within seven days and the place | (7) |
| Solicitor’s certificate | That, according to his instructions, the list and its statements are correct | (8) |
Sub-rule (3) asks for two things at once: brevity and sufficient identification. A description such as “letter, plaintiff to defendant, 14 March 2025” satisfies both. “Correspondence” satisfies neither.
Grouping is expressly permitted for documents of the same nature — “invoices issued by the plaintiff to the defendant between 1 January and 30 June 2025, numbered 1041 to 1188”. Grouping dissimilar documents together is not.
Sub-rule (4) — state the grounds
Privilege excuses production, not disclosure. The document goes into the list, and the list must sufficiently state the grounds of the privilege.
“Privileged” on its own does not satisfy the sub-rule. Identify the basis — legal professional privilege, communications made for the purpose of the litigation, and so on — so that the other side can decide whether to challenge it. See privileged documents.
Note the limit of what the list gives away: the description must identify the document sufficiently, but need not disclose its privileged contents.
Sub-rules (5) and (6)
When did you part with it? and what has become of it?
These sub-rules exist because documents disappear — sent to an accountant, returned to a client, destroyed under a retention policy, lost in a flood. The Rules require the party to say so, and to say when.
Where a list is silent about a document the other side has good reason to think existed, the answer is an order for particular discovery under Rule 7 — requiring an affidavit stating whether the document is or has been in the party’s possession, custody or power, and if it has been but is not, when he parted with it and what has become of it.
An unsatisfactory answer given informally becomes a much more serious matter when it must be sworn.
Sub-rule (7) — seven days
The list itself must name a time within seven days after service and a place for inspection. It is not enough to list documents and wait to be asked.
In practice inspection is often satisfied by providing copies, at the inspecting party’s expense. Where the Court orders production, Rule 10(e) expressly contemplates a party being ordered to file and serve a copy of the whole or any part of a document, with or without an affidavit verifying the copy.
Sub-rule (8) — the solicitor’s role
Where the party has a solicitor, that solicitor shall certify on the list that, according to his instructions, the list and the statements in the list are correct.
The words “according to his instructions” matter. The solicitor is not certifying that the client has held nothing back — they cannot know that. They are certifying that the list reflects the instructions given.
The practical consequence is a duty to advise the client properly about the scope of discovery before the list is settled: what “relating to any matter in question” means, that documents adverse to the client’s case must be listed, and that possession, custody or power reaches documents held by others on the client’s behalf.
Where the list is verified under Rule 2(3), the affidavit is sworn by the party or the deponent qualified under Rule 8 — a separate and stronger assurance. On what happens when a list is not delivered, see failure to give discovery.
Sources
- National Court Rules 1983 — O 9 rr 2, 5–10; Form 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.