Order 9 of the National Court Rules 1983 is headed Discovery, Interrogatories and Admissions. It is the stage at which each side finds out what the other has.
What Order 9 contains
| Division | Subject |
|---|---|
| 1 | Discovery and inspection of documents — notice for discovery, the list of documents, orders for general and particular discovery, and inspection |
| 2 | Interrogatories — written questions a party must answer on oath |
| 3 | Admissions — notices to admit facts and documents |
Litigation is not a game of concealment. Each party must disclose the documents relating to the matters in question — including those that hurt their own case. The result is that both sides, and the Court, work from the same material.
In practice discovery does three things: it exposes the documentary record; it narrows what is genuinely in dispute; and it very often prompts settlement, because a party who sees the other side’s documents can assess the risk properly.
Rule 1 — after the close of pleadings
Subject to this Rule, where the pleadings between any parties are closed, any of those parties may, by notice for discovery in Form 30 filed and served on any other of those parties, require the party served to give discovery of documents, with or without verification.
(2) A party may require discovery with verification notwithstanding that he has previously required the same party to give discovery without verification.
Discovery follows the close of pleadings because until then nobody knows what the issues are. Relevance is measured against the matters in question between the parties, and those matters are defined by the pleadings.
That is why an application for discovery before the pleadings close is ordinarily premature — though the Court may order general discovery at any stage under Rule 5, and there is a separate procedure for discovery before suit under Order 3.
Rule 1 does not apply to proceedings on a claim for damages arising out of the death of, or bodily injury to, any person, or for contribution in respect of such damages.
So in personal injury and fatal accident cases there is no discovery by notice. Discovery must be obtained by order — under Rule 5 (general discovery) or Rule 7 (particular discovery) — or by agreement.
The counterweight is that Order 8 Rule 33 already requires such a claim to carry unusually full particulars, including medical treatment, permanent disability, earnings and dependants.
The test of relevance
Rule 2(2) requires a list of documents relating to any matter in question between him and the party giving the notice.
Rule 6(2) requires the list to enumerate documents which are or have been in the possession, custody or power of the party making it.
“Relating to” is wider than “proving”. A document that advances your opponent’s case, or that leads to a line of enquiry, relates to a matter in question just as much as one that helps you.
“Possession, custody or power” reaches beyond documents physically held. A document held by an agent, a bank or an accountant may be within a party’s power.
Documents no longer held must still be listed. Rule 6(5) requires the list to distinguish them, and Rule 6(6) requires the party to state when he parted with the document and what has become of it.
Rule 3 — the Court controls the burden
(1) The Court may, before or after any party has been required to give discovery, order that discovery shall not be required or shall be limited to such documents or classes of documents, or to such of the matters in question, as may be specified.
(2) The Court shall, on application, make such orders under Sub-rule (1) as are necessary to prevent unnecessary discovery.
The word is “shall”. Where a party demonstrates that discovery as demanded is unnecessary, the Court is required to limit it. Discovery in a document-heavy commercial case can otherwise consume more resources than the claim is worth.
A party facing an oppressive notice for discovery should apply promptly under Rule 3, proposing the categories that are genuinely necessary rather than simply resisting. On the Commercial List under Order 10A, case management addresses this directly.
Two related restrictions: Rule 2(4) — a party facing a claim for a penalty recoverable under an Act or for the enforcement of a forfeiture need not list documents relating only to that claim; and privileged documents, though they must be listed and the grounds stated, need not be produced.
The sequence
- Notice for discovery in Form 30, filed and served after the close of pleadings — Rule 1.
- List of documents in Form 31, within the time specified, not less than 14 days after service — Rules 2 and 6.
- Inspection, at a time within seven days after service of the list — Rule 6(7).
- Notices to produce documents referred to in a pleading or affidavit — Rule 9, Form 32.
- Interrogatories, where written answers on oath are needed — Division 2.
- Notices to admit facts and documents, to remove what is not really in dispute — Division 3.
Failure at any stage has consequences — see what happens if a party does not give discovery. Note too that under Order 5 Rule 27, Divisions 1 and 2 apply to a disabled person and to his next friend.
Sources
- National Court Rules 1983 — O 3; O 5 r 27; O 8 r 33; O 9 rr 1–10, Divs 1–3; O 10A; Forms 30–33
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.