Untitled document

Supreme Court (Chapter I Amendment No. 18) Rules 2010

S.R. No. 53/2010

TABLE OF PROVISIONS

Rule  Page

1Object

2Authorising provisions

3Commencement

4Principal Rules

5New Rule 29.01.1

29.01.1Scope of discovery

6Notice for discovery

7Affidavit of documents

8New Rules 29.05.1 and 29.05.2

29.05.1Order for general discovery

29.05.2Order for expanded discovery

9New Rule 29.17

29.17Transitional provision—Supreme Court (Chapter I Amendment No. 18) Rules 2010

10Form 29B—affidavit of documents

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ENDNOTES

STATUTORY RULES 2010

S.R. No. 53/2010

Supreme Court Act 1986

Supreme Court (Chapter I Amendment No. 18) Rules 2010

The Judges of the Supreme Court make the following Rules:

1Object

The object of these Rules is to amend Chapter I of the Rules of the Supreme Court in relation to the discovery of documents.

2Authorising provisions

These Rules are made under section 25 of the Supreme Court Act 1986 and all other enabling powers.

3Commencement

These Rules come into operation on 1 January 2011.

4Principal Rules

In these Rules, the Supreme Court (General Civil Procedure) Rules 2005[1] are called the Principal Rules.

5New Rule 29.01.1

After Rule 29.01 of the Principal Rules insert—

"29.01.1   Scope of discovery

(1)Unless the Court otherwise orders, discovery of documents pursuant to this Order is limited to the documents referred to in paragraph (3).

(2)Paragraph (1) applies despite any other rule or law to the contrary.

(3)Without limiting Rules 29.05 and 29.07, for the purposes of this Order, the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given—

(a)documents on which the party relies;

(b)documents that adversely affect the party's own case;

(c)documents that adversely affect another party's case;

(d)documents that support another party's case.

(4)Notwithstanding paragraph (3)—

(a)if a party giving discovery reasonably believes that a document is already in the possession of the party to which discovery is given, the party giving discovery is not required to discover that document;

(b)a party required to give discovery who has, or has had in his, her or its possession more than one copy, however made, of a particular document is not required to give discovery of additional copies by reason only of the fact that the original or any other copy is discoverable.

(5)For the purposes of paragraph (3), in making a reasonable search a party may take into account—

(a)the nature and complexity of the proceeding;

(b)the number of documents involved;

(c)the ease and cost of retrieving a document;

(d)the significance of any document to be found; and

(e)any other relevant matter.".

6Notice for discovery

In Rule 29.02(1) of the Principal Rules for "relating to any question raised by the pleadings" substitute "and which, in accordance with Rule 29.01.1, are required to be discovered".

7Affidavit of documents

At the end of Rule 29.04 of the Principal Rules insert—

"(2)If a party required to give discovery in accordance with Rule 29.01.1 does not, in making a reasonable search as required by Rule 29.01.1, search for a category or class of document, the party must include in the affidavit of documents a statement of—

(a)the category or class of document not searched for; and

(b)the reason why.".

8New Rules 29.05.1 and 29.05.2

After Rule 29.05 of the Principal Rules insert—

"29.05.1   Order for general discovery

At any stage of a proceeding, the Court may order any party to give discovery in accordance with Rule 29.01.1.

29.05.2Order for expanded discovery

(1)At any stage of a proceeding, the Court may, by order, expand a party's obligation to give discovery beyond that required by Rule 29.01.1.

(2)Without limiting any power of the Court, an order under paragraph (1) may specify any document or class of document to which the expanded obligation relates.".

9New Rule 29.17

After Rule 29.16 of the Principal Rules insert—

"29.17   Transitional provision—Supreme Court (Chapter I Amendment No. 18) Rules 2010

The amendments made to this Order by the Supreme Court (Chapter I Amendment No. 18) Rules 2010 apply to any proceeding commenced on or after 1 January 2011.".

10Form 29B—affidavit of documents

(1)In Form 29B of the Principal Rules—

(a)in clause 1 for "relating to the questions in this proceeding enumerated in Schedule 1" substitute "enumerated in Schedule 1 which are required to be discovered";

(b)in clause 3 for "document relating to the questions in the proceeding enumerated in Schedule 2" substitute "documents enumerated in Schedule 2 which would have been required to be discovered";

(c)in clause 5 for "relating to any question in the proceeding" substitute "required to be discovered".

(2)In Form 29B of the Principal Rules, after clause 5 insert—

"*6.In making a reasonable search as required by Rule 29.01.1 of Chapter I of the Rules of the Supreme Court, I did not search for the following category or class of document [specify which category or class of document for which no search was made].

*7.The reason why I did not make a search for the category or class of documents referred to in clause 6 is [specify reason].".

(3)In Form 29B of the Principal Rules at the end of the Form insert—

"*Delete if not applicable.".

Dated:    24 June 2010

M. L. WARREN, C.J.

CHRISTOPHER MAXWELL, P.

PETER BUCHANAN, J.A.

GEOFFREY NETTLE, J.A.

DAVID ASHLEY, J.A.

MARCIA NEAVE, J.A.

PHILIP MANDIE, J.A.

BERNARD D. BONGIORNO, J.A.

D. L. HARPER, J.A.

H. R. HANSEN, J.

D. J. HABERSBERGER, J.

R. S. OSBORN, J.

STEPHEN KAYE, J.

ELIZABETH HOLLINGWORTH, J.

KEVIN H. BELL, J.

ANTHONY CAVANOUGH, J.

TONY PAGONE, J.

JAMES JUDD, J.

EMILIOS KYROU, J.

DAVID F. R. BEACH, J.

JENNIFER DAVIES, J.

KARIN EMERTON, J.

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ENDNOTES

[1] Rule 4: S.R. No. 148/2005.  Reprint No. 2 incorporating amendments as at 1 November 2009.  Reprinted to S.R. No. 109/2009 and subsequently amended by S.R. Nos 60/2009, 97/2009, 132/2009, 144/2009, 146/2009, 22/2010 and 23/2010.