Order 3 of the National Court Rules 1983 solves a specific problem: you have been wronged, but you do not know by whom.
Rule 1(1)
(a) the applicant has a prima facie case for relief in proceedings in the Court against any person — called in the Rule “the person concerned”; and
(b) the applicant, having made reasonable inquiries, does not know the name, or does not know the description, of the person concerned, or is otherwise unable to identify the person concerned sufficiently for the purpose of commencing proceedings; and
(c) some person has or may have knowledge of facts, or has or may have in his possession, custody or power any document, recording or thing, tending to assist in the ascertainment of the name or description or other identification of the person concerned.
The applicant must have made reasonable inquiries before applying. So the affidavit must set out what was actually done to identify the person — searches, requests, correspondence — and what it produced.
An application made without having tried does not satisfy the Rule.
Has or may have knowledge, or has or may have a document. The applicant does not need to prove the respondent actually holds the answer — only that they may.
Rule 1(3): “description” includes the place of residence, place of business, occupation and sex of the person concerned. So the Order reaches not only a name but enough detail to sue.
Rule 1(1)(d) and (e)
(d) to attend before the Court or an officer of the Court and be orally examined on any matter relating to the name or description or other identification of the person concerned; and
(e) to produce any document, recording or thing in his possession, custody or power relating to the name or description or other identification of the person concerned.
Where paragraphs (a) and (b) appear and it further appears that a corporation has or may have in its possession, custody or power any document, recording or thing tending to assist, the Court may order the corporation or any officer of the corporation to produce it.
Against an individual, the Court may order oral examination and production. Against a corporation, sub-rule (2) provides for production only — though the order may be directed to the corporation or any officer of the corporation.
Everything ordered is confined to the name or description or other identification of the person concerned. Order 3 is not a route to general pre-action disclosure about the merits.
Rule 2
(1) A person may apply for orders under Rule 1 by originating summons without making any person a defendant.
(2) An order under Rule 1 must be served personally on the person ordered to attend or to produce any document or thing.
An originating summons normally names a defendant. Here there is none — which makes sense, because the whole difficulty is that the defendant cannot be identified.
Service of the resulting order must be personal under sub-rule (2). See personal service.
Rules 3 and 4
(1) An order shall not require a person to attend or to produce any document or thing on any day unless a sum sufficient to meet his reasonable expenses of complying with the order in relation to that day is paid or tendered to him at the time of service of the order or not later than a reasonable time before that day.
(2) Where a corporation is required to produce, that sum may be paid or tendered to any person apparently in the service of the corporation and apparently of or above the age of 16 years.
Where any person incurs expense or loss in complying with an order under Rule 1 in an amount exceeding any sum paid under Rule 3, the Court may order the applicant to pay to that person an amount sufficient to make good the expense or loss.
The person ordered to help is, by definition, a stranger to the dispute. Rule 3 requires their expenses to be met in advance, and Rule 4 makes good any shortfall.
Pay conduct money at the time of service. An order served without it does not require attendance on the day.
Order 22 Rule 21
The Court may, in proceedings in respect of any claim for relief, include in any order for costs the costs of a party to the proceedings of proceedings under Order 3 in respect of that claim for relief including payments of conduct money and payments on account of expenses and loss under that Order.
So the cost of the Order 3 application, the conduct money, and any Rule 4 payment can all be recovered from the eventual defendant if the substantive claim succeeds. See costs.
Order 5 Rule 32 deals with joinder once the person is identified. If a limitation period is running, move quickly — Order 3 does not stop the clock. See time limits.
Order 3 is distinct from ordinary discovery under Order 9, which is available only between parties after proceedings have begun, and from a summons for production under Order 11.
Sources
- National Court Rules 1983 — O 3 rr 1–4; O 4 Div 4; O 5 r 32; O 9; O 11; O 22 r 21
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.