Death By Discovery Print E-mail
Wednesday, 16 August 2006

 

Death by Discovery

 

 

 

 

 

 

 

Philippe D. Gray-Grzeszkiewicz

 

Barrister

 

 

 

Edmund Barton Chambers

 

Level 44 MLC Centre

 

SYDNEY NSW 2000

 

 

Telephone 9220-6100

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Dated 18 March 2000

 

Revised 10 March 2002

 

INTRODUCTION

 

 

Discovery of Documents is a process whereby the parties to an action disclose to each other all documents in their possession, custody or power relating to matters in question in the action.

 

Osborn’s Concise Law Dictionary

 

 

 

Discovery – Process of detailing in a huge chronological list the ten cardboard boxes of random but crucial paperwork discovered by your client at unpredictable intervals (after he first told you that he has given you everything of relevance).

 

Martin Vernon, Bluff your way in Law

 

 

 

Discovery consists of seeing what everybody has seen and thinking what nobody has thought.

 

Albert Szent-Gyorgi, American Biochemist

 

 

The current rules of discovery are those rules that were published in the New South Wales Government Gazette on 19 July 1996.  They came into force and affected (with some limited exceptions) proceedings commenced on or after 1 October 1996.

 

 

The rules are therefore over 5 years old. This paper was originally born out of a continuing observation that many practitioners (and even some judges) were not aware of the significant nature of the changes to the previous regime and continued to act in ignorance of the novel procedures contained in the new rules 3 years after the rules changed. Two years later when this revised version of the paper was prepared, there remain significant numbers of practitioners who have not come to grasp the new regime.

 

 

This revised paper also addresses the concerns of newly admitted solicitors and paralegals who have lacked an authoritative but relatively accessible introductory paper that deals with the mechanics of a task that is often delegated to them without much instruction or supervision.

 

 

Older practitioners should note that one novel feature of the rules is the creation of 2 new categories of discoverable documents. The first is called “Excluded Documents.” These are documents that you did used to discover under the old rules, but don’t have to discover now. The second are documents falling within the scope of what I have called “The six month rule.” These are documents that you did not have to discover under the old rules, but you do have to discover now.

 

 

The rules are a work in progress: they were altered by publication of an amendment in the gazette on 23 August 1996 that related to privilege; the provisions were again amended by publication in the gazette on 27 August 1999 that again related to privilege (the effect of that amendment was also to ensure that as far as privilege was concerned, the position was the same in respect of litigation whether or not it commenced before or after 1 October 1996).  The most recent alteration to the part was on publication in the gazette on 19 November 1999 where once again the scope of privilege was altered.

 

 

These recurring changes referring to “privilege” may not accord with your understanding of the term. I have tried in this paper to highlight traps for the unwary on this subject.

 

 

All these topics are canvassed in the first part of this paper under the heading “The Theory.”

 

 

In the second part of this paper under the heading “The Practice” I have focussed on the practical changes introduced by the new rules that affect the way practitioners go about ensuring their clients give discovery properly. The discussion is in chronological order dealing with both sides of the process in turn.

 

 

I have summarised in the table below the effect by the rules on various elements constituting discovery.

 

 

 

 

 

 

Changes at a Glance

 

Former Regime

 

Current Regime

 

Supreme Court Rules

 

Notice for Discovery

 

Omitted

 

-

 

Order for Discovery

 

Similar

 

Pt 23 r.3(1) & (4)

 

General Discovery

 

Omitted

 

-

 

Specific Discovery

 

Similar

 

Pt 23 r.3(1), (2) & (3)

 

List of Documents

 

Different

 

Pt 23 r.3(5)(a) & (6)

 

Verification of List

 

Different

 

Pt 23 r.3(5)(b) & 3(7)

 

Solicitor’s Certificate

 

Different

 

Pt 23 r.3(5)(c)

 

Inspection

 

Different

 

Pt 23 r.3(9) & (10)

 

Admission of Documents

 

Identical

 

Pt 18 r.4

 

Continuing Discovery

 

Similar

 

Pt 23 r.3(8)

 

Personal Injury Litigation

 

Similar

 

Pt 23 r.5

 

 

 

All the elements appearing above are discussed in this paper except for obligations for continuing discovery and the application of discovery in suits for personal injury. Both remain unchanged in substance

 

 

The rules I refer to in this paper are all applicable to the Supreme Court. However, the District Court has identical rules appearing in Part 22.

 

 

 

 

 

 

 

THE THEORY

 

 

EXCLUDED DOCUMENTS

 

 

Practitioners may be haunted by memories of having to draft a series of paragraphs that founded a claim for privilege over types of documents that no other practitioner would even contemplate seeking access.  These would include originals and copies of all documents on the solicitor’s own file, as well as those sent to the client, Counsel, the Court and expert witnesses.  The trick was to ensure that anything in the possession of anybody involved in the running of the litigation remained privileged.

 

 

Mercifully the new regime obviates the need to do this by excluding these documents from that group that would otherwise be discoverable.  Quite naturally these documents are referred to as “excluded documents”.

 

 

The definition of excluded documents is contained in Part 23 Rule 1 and is remarkably lucid. I have been unable to locate any decision commenting on the meaning of the term, or on the nature of excluded documents.

 

 

The definition draws a distinction between documents that were created before proceedings were commenced (presumably the date upon which originating process was filed) and those after.

 

 

All documents which wholly came into existence after the commencement of proceedings are excluded.

 

 

As for documents that were created before proceedings were commenced, part of the definition is noteworthy in that it appears to import a litmus test that operates along the lines of whether or not photocopies of a document are indistinguishable from one another; where distinction can be made each copy is discovered, but where distinction cannot be made only one (representative) version is discovered.  In other words, the effect of the rule is that if there is an original document which has been photocopied a number of times, then it only has to appear in the list of documents once; no distinction to be drawn between an original and a copy, or between copies, that were produced by a photocopier. However, if after photocopying an original somebody then makes a notation on it (such as a record of a telephone conversation) the definition of excluded documents requires a litigant to include in the list an example of the (indistinguishable) version and a separate entry of that document with the alterations to it. In my opinion this would extend to transmitted facsimiles – the originals do not bear notations indicating what time or to whom etc. they were transmitted, but the recipient’s copies do. If you act for a party that transmits facsimiles to itself (eg. a company with several offices) you need to discover the faxed and received copies.

 

 

 

THE SIX MONTH RULE

 

 

The six month rule is contained in Part 23 Rule 3(5)(a)(ii). It states (the relevant parts are emboldened):

 

 

(5) Party B must, within 28 days of the order being made (or of notice of the order being received by party B, if party B was not present or represented when the order was made) or such other period as the Court may specify, serve on party A:

 

 

(a)  a list, complying with subrule (6), of all the documents or samples specified in the order (other than excluded documents) which:

 

 

(i)  are in the possession, custody or power of party B; or

 

 

(ii) are not, but were later than 6 months prior to the commencement of the proceedings, in the possession, custody or power of party B;

 

 

 

The effect of this rule appears to be that a party giving discovery is required to look at the date that originating process was filed, and identify the date six months before then.  The documents that were in the possession, custody or power of that party within that period, but are not now in the possession, custody or power of that party ought to be included in the list of documents.

 

 

 

PRIVILEGE

 

 

One of the more significant changes to the new regime of discovery is the alteration of the concept of a privileged document.  Disturbingly, under the new regime a document may be described as privileged even when it does not have all the hallmarks of privilege, such as confidentiality.

 

 

An important difference between State and Federal Courts is this extended definition of privilege.

 

 

A privileged document is defined by the rules to be one in respect of which evidence could not be adduced in the proceedings over the objection of any person by virtue of the operation of the following sections of the Evidence Act: 117- 25, 126B (subject to several conditions), 126H, and 129-131.

 

 

It also includes documents that tend to prove that the person giving discovery has committed an offence under an Australian or Foreign law or is liable to pay a civil penalty, or the disclosure/production/admission of which would be contrary to any Commonwealth or New South Welsh Act other then each jurisdiction’s Evidence Act.

 

 

Each of the 4 relevant notices in the government gazette include an explanatory note signed by Michael Blay, the then secretary of the Supreme Court Rules Committee.  Each note is prefaced with the words “this note does not form part of the rules.” Nevertheless they make interesting reading.

 

 

The explanatory note of 19 July 1996 relevantly states:

 

 

The object of the amendment…is to substitute for the existing provisions relating to discovery and inspection of documents, new provisions which: limit the right to require, and set up new procedures for discovery and inspection of documents, and certain ancillary matters.

 

 

The explanatory note of 23 August 1996 relevantly states:

 

 

The object of the amendments…is to clarify the availability of privilege on the ground of self incrimination on discovery and to otherwise assimilate the grounds for privilege on discovery to those available at the hearing under the Evidence Act 1995

 

 

The explanatory note of 27 August 1999 relevantly states:

 

 

The object of the above amendments is to include references to relevant sections recently added to the Evidence Act 1995, and clarify the definition of privilege in part 23…of the Supreme Court Rules.

 

 

The explanatory note 19 November 1999 relevantly states:

 

 

The object of the amendments…is to amend provisions of the rules that relate to sexual assault communications privilege, in circumstances where the Evidence Act 1995 does not apply, so as to take account of changes to sexual assault communications privilege effected by the Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act 1999.

 

 

The common theme through these amendments appears to be that the rules committee wants the Evidence Act to apply to discovery in a similar way to the way it does during trial. The Act of course applies only when evidence is adduced, and no evidence is adduced in the course of discovery. The method adopted by the committee appears to be to extend the application of inter alia the Evidence Act to situations where evidence is not adduced.

 

 

This unfortunately flies in the face of 2 High Court decisions handed down on 23 December 1999, namely Mann v Carnell[1] and Esso v Comr Taxation[2].

 

 

Mann v Carnell was a case where the Appellant sought access to documents discovered by the Respondent. Did the Evidence Act apply to discovery? It was unanimously held by the Court that the Evidence Act applies whenever evidence is adduced, whether at interlocutory stages or at hearing, but not otherwise. Consequently the Act did not apply to discovery.

 

 

Esso v Comr Taxation affirmed the decision and went on to overrule Grant v Downs. It substituted the dominant purpose test for the sole purpose test in determining some questions of privilege.

 

 

One may only speculate as to why the rules committee acted as they did. One may suggest that perhaps it had more to do with importing the Act’s dominant purpose test rather than extending the Act’s application to situation where evidence is not adduced. However, this does not account for the amendments to extend the application of the Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act 1999.

 

 

In my opinion the effect of the rule is to add a basis upon which privilege can be claimed. Privilege can now be claimed at Common Law and pursuant to the Evidence Act as if what were being discovered was being tendered in evidence at trial.

 

 

 

THE PRACTICE

 

 

I have summarised in the table below the various deadlines established by the new rules with respect to various stages of the discovery process. These are discussed in the text that follows.

 

 

 

 

Discovery Deadlines

 

Day

 

Event

 

1

 

Order for Discovery

 

28 days later

 

Last day for service of List of Documents

 

21 days after service

 

of List of Documents

 

Last day to request Inspection

 

14 days after Inspection

 

Last day to dispute authenticity

 

 

 

 

 

PART 1: INITIATING DISCOVERY

 

 

Notice for Discovery

 

 

The procedure whereby one litigant could serve upon a second litigant a document that would give rise to obligations upon the second litigant to discover its documents no longer exists.  In keeping with the growing trend for courts to involve themselves in the management of litigation, the power to impose the obligations of discovery upon a litigant is reserved solely to the court.

 

 

Nevertheless some solicitors’ precedent libraries have not been updated and you still encounter a “Notice for Discovery” from time to time. I suggest you treat this as a request for discovery, and consider entertaining yourself by pointing out to your opponent the obsolescence of your opponent’s knowledge of practice.

 

 

 

General & Specific Discovery

 

 

Following the trend of judicial intervention at the interlocutory stage, the burdensome task of general discovery has been dispensed with.  Discovered documents shall be limited to a specific class, which may be specified by relevance to a fact in issue or maybe specified by description of the nature of the documents.  That specification of what a class of documents shall be composed of is not exhaustive.

 

 

If you receive a “Notice for Discovery” I recommend that you write to the person serving same and point out that the notice seeks general discovery, is obsolete, and request that specific classes of documents be identified in accordance with the rules.

 

 

 

Obtaining Discovery

 

 

What then is a litigant to do if they wish their opponent to provide access to the opponent’s documents before a directions hearing or case management review?  Whilst the rules provide for the court to make an order for (specific) discovery upon the application by a litigant by way of motion, I suggest it would prudent to ensure that your client is awarded the costs of the motion.  To do that, I suggest that, the “Notice for Discovery” no longer being in existence, a letter be sent to the opponent in similar terms to the following example:

 

 

Dewey Cheatham & Howe

 

Solicitors

 

 

Dear Sirs,

 

 

Would you please discover the following classes of documents:

 

 

1.        Those that are relevant to determining who manufactured the widget.

 

 

2.        Those that are relevant to determining when the widget was manufactured.

 

 

3.        Those that evidence how the widget subject of these proceedings was manufactured.

 

 

4.        Those that show how widgets of the types similar to the widget the subject of these proceedings were manufactured over the period 1 April 1993 to 27 August 1993, inclusive.

 

 

5.        Those that are relevant to determining whether or not the Defendant supplied the widget to the Plaintiff.

 

 

 

Would you please provide discovery in accordance with Part 23 of the Supreme Court Rules within 28 days from the date of this letter.  If we do not receive a list of documents in accordance with the rules within that time then we shall file a motion with the court seeking an order that the Defendant give discovery of documents to the Plaintiff within the classes enumerated above. 

 

 

We shall tender this letter on the question of costs.

 

 

Yours faithfully

 

          Wyllit Wynn

 

 

 

If presented with such a letter and you are unable to provide discovery within the time period, then I suggest you write to the litigant seeking discovery along the following lines:

 

 

Wyllit Wynn

 

Solicitors

 

 

Dear Sirs,

 

 

We refer to your letter in respect of discovery.

 

 

Our client is unable to provide discovery in accordance with the rules of court within the time period referred to in your above letter.  The documents are voluminous and we require an additional 4 weeks to discover the documents.  Alternatively, you may consider specifying the classes of documents that you would seek to discover with greater particularity.

 

 

In the absence of a written response to this letter from you, we shall assume that you shall not seek to move the court within the additional time we request.

 

 

Yours faithfully

 

Dewey Cheatham & Howe

 

 

 

 

PART 2: Drawing the list of documents

 

 

The Solicitor’s Certificate

 

 

Once it is clear that your client shall have to provide discovery, perhaps the most prudent place to begin comprehensively addressing all the requirements and obligations is with the solicitor’s certificate.  That certificate shall need to be signed by the solicitor on the record, and attached to the list of documents, essentially stating two things:  first that the solicitor has advised his/her client as to the obligations in giving discovery, and second that the solicitor is not personally aware of any documents falling within the scope of the “six month rule” that do not appear in the list of documents.

 

 

An analysis of the obligations arising under discovery is beyond the scope of this paper.  However, in appendix “A” to this paper is a letter I sent my clients when I was a solicitor and discovery appeared imminent. It has to be modified for each particular case in line with the facts. You will note that it is exceptionally broad, and some practitioners have said to me that it is too broad. I deliberately drafted it as broadly as I did so that if I were accused of improperly advising my client it would be clear from my advice that no stone should be left unturned. You may take a more adventurous view.

 

 

Hopefully within a relatively short period of time your client will have responded to your letter so that the solicitors certificate can be signed.  If there are any documents that fall within the scope of the six month rule then hopefully your client shall have advised you of them in the covering letter. It would be prudent to obtain unambiguous instructions if your client has failed to properly advise you.

 

 

 

 

 

The List of Documents

 

 

As for the documents that arrive on your desk, after reviewing them individually to determine whether or not they are properly discoverable, they are all summarised in a list.  For each document, that list needs to specify:

 

 

1.        The date of the document.

 

 

2.        The nature of the document.

 

 

3.        When a group of documents of the same nature but with varying dates is included, then the number of documents within that group.

 

 

4.        Any claim for privilege made in respect of that document, and the basis upon which that claim is made by reference to the Evidence Act (if applicable).

 

 

That list is known as Part 1.

 

 

Part 2 of the list is comprised of those documents falling within the scope of the sixth month rule.  Each document in Part 2 is summarised in the list in exactly the same way as the documents in Part 1, with the additional 5th element being the name of the person whom your client believes now possesses that document.

 

 

It is permissible for your client not to know who currently has possession a document that falls within the scope of the six month rule. If that is the case, then no name should appear in the list.

 

 

 

 

 

Verification of the List

 

 

Once that list is created, it needs to be verified by your client.  Note that the substance of the Affidavit is prescribed at Rule 3(5)(b).

 

 

In essence your client is to swear that it is their belief that:

 

 

1.        The documents in Part 1 of the list are within their possession, custody or power; and

 

 

2.        That the documents in Part 2 of the list are in the possession of the people named in the list; and

 

 

3.        All the discoverable documents appear in the list.

 

 

Upon receipt of the list and the Affidavit, the solicitor’s certificate ought to be attached and the completed documents served upon your opponent.

 

 

In appendix B to this paper I have included a sample list of documents with verifying affidavit and solicitor’s certificate.

 

 

 

PART 3: EXAMINING THE DOCUMENTS

 

 

Inspection

 

 

Upon receipt of a document, assuming it is in correct form, Part 23 Rule 3(10) provides that if you wish to inspect any of the documents contained in Part 1 of that list, a request to inspect must be made within 21 days after service of the list.

 

 

What if you want to inspect documents contained in Part 2? Issue a subpoena directed to the person named in Part 2. If there is insufficient information to direct a subpoena, then I suggest you write to the party giving discovery with a request to more precisely identify the third party so that a subpoena can be issued.

 

 

Making documents available for inspection does not mean being confronted with an archive box of old papers.  Sub-rules 9 and 10 impose obligations on the litigant giving discovery during the course of inspection that include:

 

 

1.        The documents must be physically kept and arranged in a way that makes the documents readily accessible, and capable of convenient inspection.

 

 

2.        The documents must be identified in a way that enables particular documents to be readily retrieved.

 

 

3.        People able to explain the way the documents are arranged and to assist in locating and identifying particular documents must be available.

 

 

4.        Facilities for photocopying the documents, subject to an undertaking to pay the reasonable costs thereof, must be available.

 

 

5.        In respect of documents that cannot be photocopied, facilities for copying the documents, must be available (interestingly not subject to any undertaking in respect of costs).

 

 

Points 1 and 5 above suggest that if video tape, audio tape, CD’s or computer disks were discovered, then televisions, video players, stereos and computers would also need to be available at the time of inspection.

 

 

 

 

Authenticity

 

 

Assuming that an inspection has been arranged in compliance with the rules, the clock starts to tick in relation to the admission provisions of Part 18 Rule 4. In essence, that rule states that if within the 14 day period, no notice is given to the effect that authenticity of a discovered document is disputed, then:

 

 

1.     if the inspected document is described in the list as an original document, it is deemed to have been printed, written, signed or executed as it purports to have been; or

 

 

2.     if the document is described in the list as a copy, then it is a true copy.

 

 

The one exception to the 14 day deadline is where the authenticity of a particular document is denied in a pleading.  In that case the documents authenticity always remains in dispute.

 


APPENDIX A

 

 

Attention: Bill Smith

 

XYZ Limited

 

 

Dear Bill,

 

 

RE: XYZ ats JONES

 

 

The Court has ordered a Discovery of Documents in this litigation.

 

 

Discovery of documents is when the litigants in an action disclose to each other all documents in their possession, custody or power relating to matters in question in the litigation. Once those documents are identified, they need to be summarised in a special form, and organised so that an inspection of those documents can take place.  We shall prepare all the necessary forms, however we need you to collate all the documents for us to inspect.

 

 

What follows is a detailed explanation of your obligations. You may find some parts of the explanation obvious. We have not stated the obvious because we think you may be stupid. We have explained your obligations in the way that we have because the rules of court require us to explain your obligations that way.

 

 

In the context of discovery, the word “document” means “any record of information” and includes:

 

 

1.        Anything on which there is writing; and

 

 

2.        Anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

 

 

3.        Anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and

 

 

4.        A map, plan, drawing or photograph;

 

 

5.        Video tape, audio tape, a Compact Disk, photographic film and slides.

 

 

However, documents do not have to be discovered if they are classified as Excluded Documents.  Excluded documents include:

 

 

1.        Any document filed in the litigation and any copy thereof; and

 

 

2.        Any document which wholly came into existence after the commencement of the litigation; and

 

 

3.        Any additional copy of a document which contains no mark, deletion or other matter, relevant to a fact in issue.

 

 

Only relevant documents need to be discovered. Please note that in this context the phrase “relevant documents” has special meaning. A relevant document is one that relates to a matter in question between the parties to the litigation. A document is one that relates to a matter in question between the parties to the litigation if it is reasonable to suppose that the document contains information which may – not which must – enable any party in the litigation to advance his own case or to damage the case of any other party, either directly or indirectly.  This includes documents that may fairly lead to a train of inquiry which might have the consequence of either a party advancing his own case or damaging the case of another party.  A document need not be discovered if there is simply a speculative possibility or mere suggestion that the document may contain relevant material.

 

 

All relevant documents that are in your possession, custody or power need to be discovered. The words “possession, custody or power” have a special meaning in this context.  Possession refers to the lawful right to physical possession of a document. Someone has custody of a document where the document is physically in the possession of that person, whether or not this is a companied by a right to physical possession, and whether or not the person is constrained by a contract from dealing with the document. A document is within the power of someone, if that person has an enforceable legal right to inspect it without the need to obtain the consent of any other person. This would include documents held by your bank or accountant, for example.

 

 

You are obliged to make reasonable enquiries so that to the best of your information, knowledge and belief there are no relevant documents (other than excluded documents) not available for inspection.

 

 

Once you have collated all the relevant documents, we have inspected them and drafted the prescribed form, you shall be required to swear an affidavit in relation to the discovery of documents. If you adhere to the guidelines in this letter the affidavit shall be true. If the affidavit is false (and it may be if you do not adhere to the guidelines in this letter) then you may be committing perjury, a serious criminal offence.

 

 

Once you have sworn the affidavit the forms shall be filed with the Court.  If after swearing the affidavit you discover that you have inadvertently left out a relevant document, then please contact us immediately; a supplementary form must be prepared as soon as possible.

 

 

If you do not understand anything in this letter then please contact us and we shall be happy to explain it further.

 

 

Once you have collated the documents to be discovered, please contact us so that arrangements may be made to collect them. If the collation will take more than 2 weeks from the date of this letter, then please telephone us immediately with an estimate of how long it will take.

 

 

We look forward to hearing from you.

 

 

Yours faithfully

 


APPENDIX B

 

 

   

IN THE SUPREME COURT

 

OF NEW SOUTH WALES

 

SYDNEY REGISTRY

 

 

EQUITY DIVISION

 

 

 

1234 OF 2001

 

 

 

LIST OF DISCOVERED DOCUMENTS

 

 

 

XYZ Ltd

 

Plaintiff

 

 

V

 

 

ABC Ltd

 

Defendant

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Wyllit Wynn

 

Solicitors

 

3/123 Pitt Street

 

SYDNEY NSW 2000

 

DX 123 SYDNEY

 

Telephone 9212-3456

 

Facsimile 9123-4567

 

 

 

 

 

Pursuant to the Order of the Court on 15 November 2001 the Plaintiff hereby produces:

 

 

1. A List of Discovered Documents, in accordance with Part 23 rule 3(5)(a), annexed hereto and marked “1”;

 

 

2. An Affidavit, in accordance with Part 23 rule 3(5)(b),  annexed hereto and marked “2”; and

 

 

3. A Solicitors Certificate, in accordance with Part 23 rule 3(5)(c), annexed hereto and marked “3”.

 


 

Annexure 1

 

List of Documents

 

 

Part 1

 

 

 

 

 

Date

 

No.

 

Original (O) or Copy (C)

 

Description

 

Claim for Privilege

 

1 January 1987

 

1

 

C

 

Receipt IV68498498

 

 

13 July 1993

 

2

 

O

 

Letter from Billen Sue to Plaintiff

 

s.118

 

27 October 1999

 

3

 

C

 

Advice from counsel

 

s.118 & 119

 

12 April 2001

 

4

 

O

 

Letter from Plaintiff to Andrew Rogers

 

 

 

Part 2

 

 

No documents

 


Annexure 2

 

Verifying Affidavit

 

 

 

I:

 

Bill Smith

 

Of:

 

12 Jones Road

 

Smithville NSW 2123

 

Occupation:

 

General Manager

 

 

Say on Oath:

 

 

1.     I am employed by XYZ Ltd as a General Manager and am authorized to swear this Affidavit on behalf of the Plaintiff.

 

 

2.     I have made reasonable inquiries and believe that there are no documents (other than excluded documents) falling within any of the classes specified in the order which are, or were later than six months prior to the commencements of the proceedings, in the possession, custody or power of the Plaintiff other than those referred to in the List of Documents.

 

 

3.     I have made reasonable inquiries and believe that the documents in Part 1 of the list are within the possession, custody or power of the Plaintiff.

 

 

4.     I have made reasonable inquiries and believe that the documents in Part 2 of the list are within the possession or power of the persons (if any) respectively specified in that part.

 

 

5.     I have made reasonable inquiries and as to any document in Part 2 in respect of which no such person is specified, I have no belief as to whose possession or power the document is in.

 

 

6.     In respect of document 2, I say that the Plaintiff sought legal advice from its former solicitors Billen Sue, and that document 2 is a letter from the Plaintiff’s former solicitors containing the substance of that advice.

 

 

7.     In respect of document 3, I say that the Plaintiff sought legal advice from its current solicitors Wyllit Wynn, and they in turn briefed counsel to advise. Document 3 is a copy of counsel’s advice.

 

 

SWORN AT etc.

 


Annexure 3

 

Solicitor’s Certificate

 

 

1.       I am the solicitor, or a solicitor in the employ of the solicitor, for the Plaintiff.

 

 

2.       I have advised my client, through its officer (the deponent of the affidavit in Annexure 2) as to obligations arising under an order for discovery.

 

 

3.               I am not aware of any documents within any of the classes specified in the order (other than excluded documents) which are, or were later than 6 months prior to the commencement of the proceedings, in the possession, custody or power of my client other than those referred to in the list of documents in Annexure 1.

 

 

 

SIGNED & DATED

 



[1] [1999] HCA 66, 201 CLR 1, 74 ALJR 378

 

[2] [1999] HCA 67, 201 CLR 49, 74 ALJR 339

 

INTRODUCTION

 

 

Discovery of Documents is a process whereby the parties to an action disclose to each other all documents in their possession, custody or power relating to matters in question in the action.

 

Osborn’s Concise Law Dictionary

 

 

 

Discovery – Process of detailing in a huge chronological list the ten cardboard boxes of random but crucial paperwork discovered by your client at unpredictable intervals (after he first told you that he has given you everything of relevance).

 

Martin Vernon, Bluff your way in Law

 

 

 

Discovery consists of seeing what everybody has seen and thinking what nobody has thought.

 

Albert Szent-Gyorgi, American Biochemist

 

 

The current rules of discovery are those rules that were published in the New South Wales Government Gazette on 19 July 1996.  They came into force and affected (with some limited exceptions) proceedings commenced on or after 1 October 1996.

 

 

The rules are therefore over 5 years old. This paper was originally born out of a continuing observation that many practitioners (and even some judges) were not aware of the significant nature of the changes to the previous regime and continued to act in ignorance of the novel procedures contained in the new rules 3 years after the rules changed. Two years later when this revised version of the paper was prepared, there remain significant numbers of practitioners who have not come to grasp the new regime.

 

 

This revised paper also addresses the concerns of newly admitted solicitors and paralegals who have lacked an authoritative but relatively accessible introductory paper that deals with the mechanics of a task that is often delegated to them without much instruction or supervision.

 

 

Older practitioners should note that one novel feature of the rules is the creation of 2 new categories of discoverable documents. The first is called “Excluded Documents.” These are documents that you did used to discover under the old rules, but don’t have to discover now. The second are documents falling within the scope of what I have called “The six month rule.” These are documents that you did not have to discover under the old rules, but you do have to discover now.

 

 

The rules are a work in progress: they were altered by publication of an amendment in the gazette on 23 August 1996 that related to privilege; the provisions were again amended by publication in the gazette on 27 August 1999 that again related to privilege (the effect of that amendment was also to ensure that as far as privilege was concerned, the position was the same in respect of litigation whether or not it commenced before or after 1 October 1996).  The most recent alteration to the part was on publication in the gazette on 19 November 1999 where once again the scope of privilege was altered.

 

 

These recurring changes referring to “privilege” may not accord with your understanding of the term. I have tried in this paper to highlight traps for the unwary on this subject.

 

 

All these topics are canvassed in the first part of this paper under the heading “The Theory.”

 

 

In the second part of this paper under the heading “The Practice” I have focussed on the practical changes introduced by the new rules that affect the way practitioners go about ensuring their clients give discovery properly. The discussion is in chronological order dealing with both sides of the process in turn.

 

 

I have summarised in the table below the effect by the rules on various elements constituting discovery.

 

 

 

 

 

 

Changes at a Glance

 

Former Regime

 

Current Regime

 

Supreme Court Rules

 

Notice for Discovery

 

Omitted

 

-

 

Order for Discovery

 

Similar

 

Pt 23 r.3(1) & (4)

 

General Discovery

 

Omitted

 

-

 

Specific Discovery

 

Similar

 

Pt 23 r.3(1), (2) & (3)

 

List of Documents

 

Different

 

Pt 23 r.3(5)(a) & (6)

 

Verification of List

 

Different

 

Pt 23 r.3(5)(b) & 3(7)

 

Solicitor’s Certificate

 

Different

 

Pt 23 r.3(5)(c)

 

Inspection

 

Different

 

Pt 23 r.3(9) & (10)

 

Admission of Documents

 

Identical

 

Pt 18 r.4

 

Continuing Discovery

 

Similar

 

Pt 23 r.3(8)

 

Personal Injury Litigation

 

Similar

 

Pt 23 r.5

 

 

 

All the elements appearing above are discussed in this paper except for obligations for continuing discovery and the application of discovery in suits for personal injury. Both remain unchanged in substance

 

 

The rules I refer to in this paper are all applicable to the Supreme Court. However, the District Court has identical rules appearing in Part 22.

 

 

 

 

 

 

 

THE THEORY

 

 

EXCLUDED DOCUMENTS

 

 

Practitioners may be haunted by memories of having to draft a series of paragraphs that founded a claim for privilege over types of documents that no other practitioner would even contemplate seeking access.  These would include originals and copies of all documents on the solicitor’s own file, as well as those sent to the client, Counsel, the Court and expert witnesses.  The trick was to ensure that anything in the possession of anybody involved in the running of the litigation remained privileged.

 

 

Mercifully the new regime obviates the need to do this by excluding these documents from that group that would otherwise be discoverable.  Quite naturally these documents are referred to as “excluded documents”.

 

 

The definition of excluded documents is contained in Part 23 Rule 1 and is remarkably lucid. I have been unable to locate any decision commenting on the meaning of the term, or on the nature of excluded documents.

 

 

The definition draws a distinction between documents that were created before proceedings were commenced (presumably the date upon which originating process was filed) and those after.

 

 

All documents which wholly came into existence after the commencement of proceedings are excluded.

 

 

As for documents that were created before proceedings were commenced, part of the definition is noteworthy in that it appears to import a litmus test that operates along the lines of whether or not photocopies of a document are indistinguishable from one another; where distinction can be made each copy is discovered, but where distinction cannot be made only one (representative) version is discovered.  In other words, the effect of the rule is that if there is an original document which has been photocopied a number of times, then it only has to appear in the list of documents once; no distinction to be drawn between an original and a copy, or between copies, that were produced by a photocopier. However, if after photocopying an original somebody then makes a notation on it (such as a record of a telephone conversation) the definition of excluded documents requires a litigant to include in the list an example of the (indistinguishable) version and a separate entry of that document with the alterations to it. In my opinion this would extend to transmitted facsimiles – the originals do not bear notations indicating what time or to whom etc. they were transmitted, but the recipient’s copies do. If you act for a party that transmits facsimiles to itself (eg. a company with several offices) you need to discover the faxed and received copies.

 

 

 

THE SIX MONTH RULE

 

 

The six month rule is contained in Part 23 Rule 3(5)(a)(ii). It states (the relevant parts are emboldened):

 

 

(5) Party B must, within 28 days of the order being made (or of notice of the order being received by party B, if party B was not present or represented when the order was made) or such other period as the Court may specify, serve on party A:

 

 

(a)  a list, complying with subrule (6), of all the documents or samples specified in the order (other than excluded documents) which:

 

 

(i)  are in the possession, custody or power of party B; or

 

 

(ii) are not, but were later than 6 months prior to the commencement of the proceedings, in the possession, custody or power of party B;

 

 

 

The effect of this rule appears to be that a party giving discovery is required to look at the date that originating process was filed, and identify the date six months before then.  The documents that were in the possession, custody or power of that party within that period, but are not now in the possession, custody or power of that party ought to be included in the list of documents.

 

 

 

PRIVILEGE

 

 

One of the more significant changes to the new regime of discovery is the alteration of the concept of a privileged document.  Disturbingly, under the new regime a document may be described as privileged even when it does not have all the hallmarks of privilege, such as confidentiality.

 

 

An important difference between State and Federal Courts is this extended definition of privilege.

 

 

A privileged document is defined by the rules to be one in respect of which evidence could not be adduced in the proceedings over the objection of any person by virtue of the operation of the following sections of the Evidence Act: 117- 25, 126B (subject to several conditions), 126H, and 129-131.

 

 

It also includes documents that tend to prove that the person giving discovery has committed an offence under an Australian or Foreign law or is liable to pay a civil penalty, or the disclosure/production/admission of which would be contrary to any Commonwealth or New South Welsh Act other then each jurisdiction’s Evidence Act.

 

 

Each of the 4 relevant notices in the government gazette include an explanatory note signed by Michael Blay, the then secretary of the Supreme Court Rules Committee.  Each note is prefaced with the words “this note does not form part of the rules.” Nevertheless they make interesting reading.

 

 

The explanatory note of 19 July 1996 relevantly states:

 

 

The object of the amendment…is to substitute for the existing provisions relating to discovery and inspection of documents, new provisions which: limit the right to require, and set up new procedures for discovery and inspection of documents, and certain ancillary matters.

 

 

The explanatory note of 23 August 1996 relevantly states:

 

 

The object of the amendments…is to clarify the availability of privilege on the ground of self incrimination on discovery and to otherwise assimilate the grounds for privilege on discovery to those available at the hearing under the Evidence Act 1995

 

 

The explanatory note of 27 August 1999 relevantly states:

 

 

The object of the above amendments is to include references to relevant sections recently added to the Evidence Act 1995, and clarify the definition of privilege in part 23…of the Supreme Court Rules.

 

 

The explanatory note 19 November 1999 relevantly states:

 

 

The object of the amendments…is to amend provisions of the rules that relate to sexual assault communications privilege, in circumstances where the Evidence Act 1995 does not apply, so as to take account of changes to sexual assault communications privilege effected by the Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act 1999.

 

 

The common theme through these amendments appears to be that the rules committee wants the Evidence Act to apply to discovery in a similar way to the way it does during trial. The Act of course applies only when evidence is adduced, and no evidence is adduced in the course of discovery. The method adopted by the committee appears to be to extend the application of inter alia the Evidence Act to situations where evidence is not adduced.

 

 

This unfortunately flies in the face of 2 High Court decisions handed down on 23 December 1999, namely Mann v Carnell[1] and Esso v Comr Taxation[2].

 

 

Mann v Carnell was a case where the Appellant sought access to documents discovered by the Respondent. Did the Evidence Act apply to discovery? It was unanimously held by the Court that the Evidence Act applies whenever evidence is adduced, whether at interlocutory stages or at hearing, but not otherwise. Consequently the Act did not apply to discovery.

 

 

Esso v Comr Taxation affirmed the decision and went on to overrule Grant v Downs. It substituted the dominant purpose test for the sole purpose test in determining some questions of privilege.

 

 

One may only speculate as to why the rules committee acted as they did. One may suggest that perhaps it had more to do with importing the Act’s dominant purpose test rather than extending the Act’s application to situation where evidence is not adduced. However, this does not account for the amendments to extend the application of the Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act 1999.

 

 

In my opinion the effect of the rule is to add a basis upon which privilege can be claimed. Privilege can now be claimed at Common Law and pursuant to the Evidence Act as if what were being discovered was being tendered in evidence at trial.

 

 

 

THE PRACTICE

 

 

I have summarised in the table below the various deadlines established by the new rules with respect to various stages of the discovery process. These are discussed in the text that follows.

 

 

 

 

Discovery Deadlines

 

Day

 

Event

 

1

 

Order for Discovery

 

28 days later

 

Last day for service of List of Documents

 

21 days after service

 

of List of Documents

 

Last day to request Inspection

 

14 days after Inspection

 

Last day to dispute authenticity

 

 

 

 

 

PART 1: INITIATING DISCOVERY

 

 

Notice for Discovery

 

 

The procedure whereby one litigant could serve upon a second litigant a document that would give rise to obligations upon the second litigant to discover its documents no longer exists.  In keeping with the growing trend for courts to involve themselves in the management of litigation, the power to impose the obligations of discovery upon a litigant is reserved solely to the court.

 

 

Nevertheless some solicitors’ precedent libraries have not been updated and you still encounter a “Notice for Discovery” from time to time. I suggest you treat this as a request for discovery, and consider entertaining yourself by pointing out to your opponent the obsolescence of your opponent’s knowledge of practice.

 

 

 

General & Specific Discovery

 

 

Following the trend of judicial intervention at the interlocutory stage, the burdensome task of general discovery has been dispensed with.  Discovered documents shall be limited to a specific class, which may be specified by relevance to a fact in issue or maybe specified by description of the nature of the documents.  That specification of what a class of documents shall be composed of is not exhaustive.

 

 

If you receive a “Notice for Discovery” I recommend that you write to the person serving same and point out that the notice seeks general discovery, is obsolete, and request that specific classes of documents be identified in accordance with the rules.

 

 

 

Obtaining Discovery

 

 

What then is a litigant to do if they wish their opponent to provide access to the opponent’s documents before a directions hearing or case management review?  Whilst the rules provide for the court to make an order for (specific) discovery upon the application by a litigant by way of motion, I suggest it would prudent to ensure that your client is awarded the costs of the motion.  To do that, I suggest that, the “Notice for Discovery” no longer being in existence, a letter be sent to the opponent in similar terms to the following example:

 

 

Dewey Cheatham & Howe

 

Solicitors

 

 

Dear Sirs,

 

 

Would you please discover the following classes of documents:

 

 

1.        Those that are relevant to determining who manufactured the widget.

 

 

2.        Those that are relevant to determining when the widget was manufactured.

 

 

3.        Those that evidence how the widget subject of these proceedings was manufactured.

 

 

4.        Those that show how widgets of the types similar to the widget the subject of these proceedings were manufactured over the period 1 April 1993 to 27 August 1993, inclusive.

 

 

5.        Those that are relevant to determining whether or not the Defendant supplied the widget to the Plaintiff.

 

 

 

Would you please provide discovery in accordance with Part 23 of the Supreme Court Rules within 28 days from the date of this letter.  If we do not receive a list of documents in accordance with the rules within that time then we shall file a motion with the court seeking an order that the Defendant give discovery of documents to the Plaintiff within the classes enumerated above. 

 

 

We shall tender this letter on the question of costs.

 

 

Yours faithfully

 

          Wyllit Wynn

 

 

 

If presented with such a letter and you are unable to provide discovery within the time period, then I suggest you write to the litigant seeking discovery along the following lines:

 

 

Wyllit Wynn

 

Solicitors

 

 

Dear Sirs,

 

 

We refer to your letter in respect of discovery.

 

 

Our client is unable to provide discovery in accordance with the rules of court within the time period referred to in your above letter.  The documents are voluminous and we require an additional 4 weeks to discover the documents.  Alternatively, you may consider specifying the classes of documents that you would seek to discover with greater particularity.

 

 

In the absence of a written response to this letter from you, we shall assume that you shall not seek to move the court within the additional time we request.

 

 

Yours faithfully

 

Dewey Cheatham & Howe

 

 

 

 

PART 2: Drawing the list of documents

 

 

The Solicitor’s Certificate

 

 

Once it is clear that your client shall have to provide discovery, perhaps the most prudent place to begin comprehensively addressing all the requirements and obligations is with the solicitor’s certificate.  That certificate shall need to be signed by the solicitor on the record, and attached to the list of documents, essentially stating two things:  first that the solicitor has advised his/her client as to the obligations in giving discovery, and second that the solicitor is not personally aware of any documents falling within the scope of the “six month rule” that do not appear in the list of documents.

 

 

An analysis of the obligations arising under discovery is beyond the scope of this paper.  However, in appendix “A” to this paper is a letter I sent my clients when I was a solicitor and discovery appeared imminent. It has to be modified for each particular case in line with the facts. You will note that it is exceptionally broad, and some practitioners have said to me that it is too broad. I deliberately drafted it as broadly as I did so that if I were accused of improperly advising my client it would be clear from my advice that no stone should be left unturned. You may take a more adventurous view.

 

 

Hopefully within a relatively short period of time your client will have responded to your letter so that the solicitors certificate can be signed.  If there are any documents that fall within the scope of the six month rule then hopefully your client shall have advised you of them in the covering letter. It would be prudent to obtain unambiguous instructions if your client has failed to properly advise you.

 

 

 

 

 

The List of Documents

 

 

As for the documents that arrive on your desk, after reviewing them individually to determine whether or not they are properly discoverable, they are all summarised in a list.  For each document, that list needs to specify:

 

 

1.        The date of the document.

 

 

2.        The nature of the document.

 

 

3.        When a group of documents of the same nature but with varying dates is included, then the number of documents within that group.

 

 

4.        Any claim for privilege made in respect of that document, and the basis upon which that claim is made by reference to the Evidence Act (if applicable).

 

 

That list is known as Part 1.

 

 

Part 2 of the list is comprised of those documents falling within the scope of the sixth month rule.  Each document in Part 2 is summarised in the list in exactly the same way as the documents in Part 1, with the additional 5th element being the name of the person whom your client believes now possesses that document.

 

 

It is permissible for your client not to know who currently has possession a document that falls within the scope of the six month rule. If that is the case, then no name should appear in the list.

 

 

 

 

 

Verification of the List

 

 

Once that list is created, it needs to be verified by your client.  Note that the substance of the Affidavit is prescribed at Rule 3(5)(b).

 

 

In essence your client is to swear that it is their belief that:

 

 

1.        The documents in Part 1 of the list are within their possession, custody or power; and

 

 

2.        That the documents in Part 2 of the list are in the possession of the people named in the list; and

 

 

3.        All the discoverable documents appear in the list.

 

 

Upon receipt of the list and the Affidavit, the solicitor’s certificate ought to be attached and the completed documents served upon your opponent.

 

 

In appendix B to this paper I have included a sample list of documents with verifying affidavit and solicitor’s certificate.

 

 

 

PART 3: EXAMINING THE DOCUMENTS

 

 

Inspection

 

 

Upon receipt of a document, assuming it is in correct form, Part 23 Rule 3(10) provides that if you wish to inspect any of the documents contained in Part 1 of that list, a request to inspect must be made within 21 days after service of the list.

 

 

What if you want to inspect documents contained in Part 2? Issue a subpoena directed to the person named in Part 2. If there is insufficient information to direct a subpoena, then I suggest you write to the party giving discovery with a request to more precisely identify the third party so that a subpoena can be issued.

 

 

Making documents available for inspection does not mean being confronted with an archive box of old papers.  Sub-rules 9 and 10 impose obligations on the litigant giving discovery during the course of inspection that include:

 

 

1.        The documents must be physically kept and arranged in a way that makes the documents readily accessible, and capable of convenient inspection.

 

 

2.        The documents must be identified in a way that enables particular documents to be readily retrieved.

 

 

3.        People able to explain the way the documents are arranged and to assist in locating and identifying particular documents must be available.

 

 

4.        Facilities for photocopying the documents, subject to an undertaking to pay the reasonable costs thereof, must be available.

 

 

5.        In respect of documents that cannot be photocopied, facilities for copying the documents, must be available (interestingly not subject to any undertaking in respect of costs).

 

 

Points 1 and 5 above suggest that if video tape, audio tape, CD’s or computer disks were discovered, then televisions, video players, stereos and computers would also need to be available at the time of inspection.

 

 

 

 

Authenticity

 

 

Assuming that an inspection has been arranged in compliance with the rules, the clock starts to tick in relation to the admission provisions of Part 18 Rule 4. In essence, that rule states that if within the 14 day period, no notice is given to the effect that authenticity of a discovered document is disputed, then:

 

 

1.     if the inspected document is described in the list as an original document, it is deemed to have been printed, written, signed or executed as it purports to have been; or

 

 

2.     if the document is described in the list as a copy, then it is a true copy.

 

 

The one exception to the 14 day deadline is where the authenticity of a particular document is denied in a pleading.  In that case the documents authenticity always remains in dispute.

 


APPENDIX A

 

 

Attention: Bill Smith

 

XYZ Limited

 

 

Dear Bill,

 

 

RE: XYZ ats JONES

 

 

The Court has ordered a Discovery of Documents in this litigation.

 

 

Discovery of documents is when the litigants in an action disclose to each other all documents in their possession, custody or power relating to matters in question in the litigation. Once those documents are identified, they need to be summarised in a special form, and organised so that an inspection of those documents can take place.  We shall prepare all the necessary forms, however we need you to collate all the documents for us to inspect.

 

 

What follows is a detailed explanation of your obligations. You may find some parts of the explanation obvious. We have not stated the obvious because we think you may be stupid. We have explained your obligations in the way that we have because the rules of court require us to explain your obligations that way.

 

 

In the context of discovery, the word “document” means “any record of information” and includes:

 

 

1.        Anything on which there is writing; and

 

 

2.        Anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

 

 

3.        Anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and

 

 

4.        A map, plan, drawing or photograph;

 

 

5.        Video tape, audio tape, a Compact Disk, photographic film and slides.

 

 

However, documents do not have to be discovered if they are classified as Excluded Documents.  Excluded documents include:

 

 

1.        Any document filed in the litigation and any copy thereof; and

 

 

2.        Any document which wholly came into existence after the commencement of the litigation; and

 

 

3.        Any additional copy of a document which contains no mark, deletion or other matter, relevant to a fact in issue.

 

 

Only relevant documents need to be discovered. Please note that in this context the phrase “relevant documents” has special meaning. A relevant document is one that relates to a matter in question between the parties to the litigation. A document is one that relates to a matter in question between the parties to the litigation if it is reasonable to suppose that the document contains information which may – not which must – enable any party in the litigation to advance his own case or to damage the case of any other party, either directly or indirectly.  This includes documents that may fairly lead to a train of inquiry which might have the consequence of either a party advancing his own case or damaging the case of another party.  A document need not be discovered if there is simply a speculative possibility or mere suggestion that the document may contain relevant material.

 

 

All relevant documents that are in your possession, custody or power need to be discovered. The words “possession, custody or power” have a special meaning in this context.  Possession refers to the lawful right to physical possession of a document. Someone has custody of a document where the document is physically in the possession of that person, whether or not this is a companied by a right to physical possession, and whether or not the person is constrained by a contract from dealing with the document. A document is within the power of someone, if that person has an enforceable legal right to inspect it without the need to obtain the consent of any other person. This would include documents held by your bank or accountant, for example.

 

 

You are obliged to make reasonable enquiries so that to the best of your information, knowledge and belief there are no relevant documents (other than excluded documents) not available for inspection.

 

 

Once you have collated all the relevant documents, we have inspected them and drafted the prescribed form, you shall be required to swear an affidavit in relation to the discovery of documents. If you adhere to the guidelines in this letter the affidavit shall be true. If the affidavit is false (and it may be if you do not adhere to the guidelines in this letter) then you may be committing perjury, a serious criminal offence.

 

 

Once you have sworn the affidavit the forms shall be filed with the Court.  If after swearing the affidavit you discover that you have inadvertently left out a relevant document, then please contact us immediately; a supplementary form must be prepared as soon as possible.

 

 

If you do not understand anything in this letter then please contact us and we shall be happy to explain it further.

 

 

Once you have collated the documents to be discovered, please contact us so that arrangements may be made to collect them. If the collation will take more than 2 weeks from the date of this letter, then please telephone us immediately with an estimate of how long it will take.

 

 

We look forward to hearing from you.

 

 

Yours faithfully

 


APPENDIX B

 

 

   

IN THE SUPREME COURT

 

OF NEW SOUTH WALES

 

SYDNEY REGISTRY

 

 

EQUITY DIVISION

 

 

 

1234 OF 2001

 

 

 

LIST OF DISCOVERED DOCUMENTS

 

 

 

XYZ Ltd

 

Plaintiff

 

 

V

 

 

ABC Ltd

 

Defendant

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Wyllit Wynn

 

Solicitors

 

3/123 Pitt Street

 

SYDNEY NSW 2000

 

DX 123 SYDNEY

 

Telephone 9212-3456

 

Facsimile 9123-4567

 

 

 

 

 

Pursuant to the Order of the Court on 15 November 2001 the Plaintiff hereby produces:

 

 

1. A List of Discovered Documents, in accordance with Part 23 rule 3(5)(a), annexed hereto and marked “1”;

 

 

2. An Affidavit, in accordance with Part 23 rule 3(5)(b),  annexed hereto and marked “2”; and

 

 

3. A Solicitors Certificate, in accordance with Part 23 rule 3(5)(c), annexed hereto and marked “3”.

 


 

Annexure 1

 

List of Documents

 

 

Part 1

 

 

 

 

 

Date

 

No.

 

Original (O) or Copy (C)

 

Description

 

Claim for Privilege

 

1 January 1987

 

1

 

C

 

Receipt IV68498498

 

 

13 July 1993

 

2

 

O

 

Letter from Billen Sue to Plaintiff

 

s.118

 

27 October 1999

 

3

 

C

 

Advice from counsel

 

s.118 & 119

 

12 April 2001

 

4

 

O

 

Letter from Plaintiff to Andrew Rogers

 

 

 

Part 2

 

 

No documents

 


Annexure 2

 

Verifying Affidavit

 

 

 

I:

 

Bill Smith

 

Of:

 

12 Jones Road

 

Smithville NSW 2123

 

Occupation:

 

General Manager

 

 

Say on Oath:

 

 

1.     I am employed by XYZ Ltd as a General Manager and am authorized to swear this Affidavit on behalf of the Plaintiff.

 

 

2.     I have made reasonable inquiries and believe that there are no documents (other than excluded documents) falling within any of the classes specified in the order which are, or were later than six months prior to the commencements of the proceedings, in the possession, custody or power of the Plaintiff other than those referred to in the List of Documents.

 

 

3.     I have made reasonable inquiries and believe that the documents in Part 1 of the list are within the possession, custody or power of the Plaintiff.

 

 

4.     I have made reasonable inquiries and believe that the documents in Part 2 of the list are within the possession or power of the persons (if any) respectively specified in that part.

 

 

5.     I have made reasonable inquiries and as to any document in Part 2 in respect of which no such person is specified, I have no belief as to whose possession or power the document is in.

 

 

6.     In respect of document 2, I say that the Plaintiff sought legal advice from its former solicitors Billen Sue, and that document 2 is a letter from the Plaintiff’s former solicitors containing the substance of that advice.

 

 

7.     In respect of document 3, I say that the Plaintiff sought legal advice from its current solicitors Wyllit Wynn, and they in turn briefed counsel to advise. Document 3 is a copy of counsel’s advice.

 

 

SWORN AT etc.

 


Annexure 3

 

Solicitor’s Certificate

 

 

1.       I am the solicitor, or a solicitor in the employ of the solicitor, for the Plaintiff.

 

 

2.       I have advised my client, through its officer (the deponent of the affidavit in Annexure 2) as to obligations arising under an order for discovery.

 

 

3.               I am not aware of any documents within any of the classes specified in the order (other than excluded documents) which are, or were later than 6 months prior to the commencement of the proceedings, in the possession, custody or power of my client other than those referred to in the list of documents in Annexure 1.

 

 

 

SIGNED & DATED

 



[1] [1999] HCA 66, 201 CLR 1, 74 ALJR 378

 

[2] [1999] HCA 67, 201 CLR 49, 74 ALJR 339

 

 
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