LAWS4001 Lecture Notes - Lecture 10: Esso Australia, Personal Injury, Lexisnexis
DISCOVERY:
Definition: discovery refers to the many types of procedures a party to a proceeding may use to
obtain information and documents that will inform their case. It involves procedures where a party
may need to disclose the existence of relevant documents to their opponents and make them
available for inspection. For this reason, it relies heavily on the clients and lawyers who are
giving discovery to act ethically.
NOTE: discovery will always arise after the close of proceedings because the parties will need to
have access to information that is relevant to the issues in the dispute, which are contained in the
pleadings.
If you are the party giving discovery you must:
Produce documents relevant to the case for inspection.
Identify which documents you claim are privileged and provide the reasons why they are
privileged.
Disclose any documents that have ever been in your possession, custody or power that
fall within the discovery categories and provide an explanation as to where they are now
(if known).
NOTE: the party giving discovery must swear an affidavit that the list of documents and
information provided is complete and accurate. The lawyer that is representing the party
giving discovery must certify that he/she explained to their client their obligations in
relation to discovery.
NOTE: there is not general right to discovery in proceedings in the District or Supreme
Courts. You must apply for discovery if you want the other party to give discovery
Rules for discovery (See UCPR)
oNOTE: can be found in UCPR Part 21 –REG 21.2 Order for Discovery
oDiscovery is generally only provided with leave of the court (21.7)
Former rules said you only needed to serve notice.
oDiscovery is given by a category of documents or by samples of documents
(21.2)
oAn order of discovery cannot be made in respect of a document unless the
document is relevant to the fact in issue (21.2(4)
Relevance: must ‘rationally affect the assessment of the probability of
the existence’ of a fact in issue in the proceedings.
The relevance test is relatively wide and allows any document that
would ‘throw light on the case’ (Hutchinson (1875)
However, does not extend to a ‘mere speculative possibility or
suggestion’ that a document to be discovered contains relevant
information (Northern Land Council (1991)
oSee 21.1 for key definitions i.e. document.
Interpretation Act (NSW) 1987 s 21 extends the definition of document
beyond a mere piece of paper.
oRule 21.3 outlines how documents are to be set out.
Can be altered i.e. 21.3(2)(a)(ii) 6 months can be extended.
Excluded documents do not have to be discovered.
oRule 21.4 provides that formal discovery must be supported by an affidavit by
the client certified by the solicitor.
oRule 21.5 provides that once the list of documents is identified they are to be
made available for discovery.
oRule 21.6 provides that discovery is a continuing obligation. If relevant
documents become available, they must give discovery.
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oRule 21.7 provides that discovered documents are not to be disclosed for any
purpose other than for the proceedings for which they are disclosed.
oNOTE: discovery is normally given once pleadings is over and the issues in the
dispute have become clear.
Limitations:
oThere are limits set on procedures of discovery. This is because it is an expensive
process and can be disproportionate to the relief sought in the proceedings.
Informal Discovery: more on informal discovery below.
oThere are also limitations as far as privilege is concerned. This is to strike a
balance between full access and to maintain confidentiality in important
relationships.
Informal Discovery:
A way to contain costs. The party giving discovery assembles all of the documents
and gives them to the other side. Saves money by not needing to draft a list of
documents.
Not as effective as ordinary discovery because:
oThere is no list of documents. So the checking process can be blind in a way
of speaking.
oThe party giving the discovery does not have to swear an affidavit. Due to
this you do not have the security of an affidavit or that the other side’s
lawyer explained discovery to them. This could lead to problems down the
line.
oThe party giving discovery need not provide information on which
documents are privileged or documents that it once had in its possession,
custody or power.
Possession, custody or power:
Possession: the Dictionary in the UCPR provides that possession is defined in the CPA s
3 to include custody and power (see CPA).
oPossession is key to discovery.
oPossession extends beyond documents that are in a party’s physical possession,
to any documents that have been in the party’s control.
oCustody: refers to mere physical holding of a document- doesn’t need ownership
oPower: an enforceable right to obtain possession from another person.
A document is within a person’s power or control if they have a
‘presently enforceable legal right to obtain from whoever actually holds
the document inspection of it without the need to obtain the consent of
anyone else’ (Lonrho [1980]
Documents in the possession of a third party:
oIf a third person has control of a document and could exercise control over it in
order to prevent inspection, then this is not within the power or control of the
person giving discovery (Taylor v Santos (1998)
Preliminary discovery
oNOTE: discovery can be ordered before proceedings have commenced pursuant
to Part 5.
oRule 5.2 provides that discovery can be obtained in relation to a person’s identity
or whereabouts
The orders made by the court may require the respondent to give
discovery or to attend court to be orally examined and/or to produce
documents.
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