During Court proceedings the Court may order discovery of documents that are relevant to the facts in dispute unless the proceedings are within the Dust Diseases Tribunal or the Small Claims Division of the Local Court.
The general process of discovery is ordered once the pleadings have been closed and the parties are sufficiently aware of the case they have to meet at trial. The exception to this is the Equity Division which follows Practice Note SC Eq 11 (with the exception of the Commercial Arbitration List), and which is the subject of the third in this three part series.
Discovery is governed by Rule 21 of the Uniform Civil Procedure Rules 2005 (NSW). The category or document sought must be relevant to a fact in issue in the proceedings (Rule 21.2(4)). If a document is not relevant to a fact in issue then it is not discoverable.
The procedure of discovery involves each party providing a list of documents in its possession and identify whether or not it claims privilege over any of those documents. Where privilege is claimed, the document will not be produced unless and until the claim for privilege has been overruled.
A party can inspect and copy the documents identified in the list of documents within 21 days of production of the List, provided that privilege has not been claimed over any documents.
If, later in the proceedings a party becomes aware of other documents that are relevant to a fact in issue, then further discovery may be possible.
Notice to Produce
An order for discovery is not required where a document (that is relevant to a fact in issue) is referred to in the original process, pleading, affidavit or witness statement (filed or served). In that scenario a Notice to Produce for Inspection may be used to require production of the document.
Liability limited by a scheme approved under Professional Standards Legislation