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Appendix A - High Court Rules
(Rules 293–312 and Rule 317A)

293 Notice For Discovery

(1) After a statement of defence has been filed any party who has filed a pleading may, by notice for discovery in form 25 filed and served on any other party who has filed a pleading, require that party to give discovery of the documents which are or have been in his possession or power relating to any matter in question in the proceeding, with or without verification.

(2) A party may require another party to give discovery with verification notwithstanding that he has previously required the same party to give discovery without verification.

294 Compliance With Notice

Subject to rule 295, a party required by notice under rule 293 to give discovery shall—

(a) Give discovery within such time, not being less than [28 days] (or, if he be resident out of New Zealand, [42 days]) after the day on which the notice for discovery is served on that party, as may be specified in the notice:

(b) If verification is not required, give discovery by filing and serving on the party giving the notice a list in accordance with rule 298 of documents relating to any matter in question in the proceeding:

(c) If verification is required, give discovery by filing and serving on the party giving the notice an affidavit verifying such a list as is mentioned in paragraph (b), together with the list so verified, unless the list has already been filed and served on the party giving the notice.

295 Limitations of Discovery On Notice

(1) The Court may, before or after any party has been required under rule 293 to give discovery, order that discovery under rule 294 by any party shall not be required or shall be limited to such documents or classes of documents, or to such of the matters in question in the proceeding, as may be specified in the order.

(2) The Court shall, on application, make such orders under subclause (1) as are necessary to prevent unnecessary discovery.

296 Multiple Parties

Where there are more than 2 parties to a proceeding, any party who is required to give discovery to any other party shall give discovery not only to that party but also to every other party who has given an address for service.

297 Order For General Discovery

(1) The Court may, at any stage of any proceeding, order any party to file and serve on any other party—

(a) A list in accordance with rule 298 of documents relating to any matter in question in the proceeding; or

(b) A list as mentioned in paragraph (a), verified by affidavit.

[(2) Where a party who has filed and served a notice under rule 293, files—

(a) An affidavit of service in respect of the service of that notice on any other party who has filed a pleading; and

(b) An affidavit deposing that the party on which that notice was served has failed to comply with paragraph (a) or paragraph (b) of rule 294,—

that party may, without any application to the Court, issue as of course, as the case may require, an order under subclause (1)(a) or subclause (1)(b) of this rule, which order shall include a provision requiring the costs of the order to be paid by the party ordered to file and serve a list of documents [and shall, for the purposes of rule 277, be deemed to be an order made on an interlocutory application].]

298 Contents of List

(1) A list of documents required by or under rule 294 or rule 297 shall, unless the Court otherwise orders, conform to the requirements of this rule.

(2) The list may be in form 26.

(3) The list shall enumerate the documents which are or have been in the possession, custody, or power of the party making the list.

(4) The list shall enumerate the documents in a convenient sequence and as shortly as possible, but shall describe each document or, in the case of a group of documents of the same nature, shall describe the group, sufficiently to enable the document or group to be identified.

(5) Where the party making the list claims that any document in his possession, custody, or power is privileged from production, he shall, in the list, sufficiently state the grounds of the privilege.

(6) The list shall distinguish those documents which are in the possession, custody, or power of the party making the list from those that have been but are no longer in his possession, custody, or power.

(7) The list shall, as to any document which has been but is no longer in the possession, custody, or power of the party making the list, state when he parted with the document and what has become of it.

(8) The list shall further enumerate any other relevant documents known to the party making the list to exist and shall state the name of the person (whether a party or not) in whose possession he believes such documents respectively to be.

(9) The party making the list shall, unless the list is verified, certify on the list that the list and the statements in the list are correct and comply with the requirements of this rule. Where, however, the party has a solicitor on the record in the proceeding the solicitor may give such certificate and may qualify it by stating that these particulars are correct according to his instructions.

299 Order For Particular Discovery Before Proceeding Commenced

(1) Where it appears to the Court that any person (hereinafter in this rule referred to as the intending plaintiff) is or may be entitled to claim in the Court relief against another person (hereinafter in this rule referred to as the intended defendant) but that it is impossible or impracticable for the intending plaintiff to formulate his claim without reference to a document or class of documents and that there are grounds for a belief that such document or one or more documents of that class may be or may have been in the possession, custody, or power of a person (whether the intended defendant or not), the Court may, on the application of the intending plaintiff made before any proceeding is brought, order the last-mentioned person—

(a) to file an affidavit stating whether that document or (as the case may be) any document of that class is or has been in his possession, custody, or power and, if it has been but is no longer in his possession, custody, or power, when he parted with it and what has become of it; and

(b) to serve the affidavit on the intending plaintiff.

[(2) An application under subclause (1) shall be by interlocutory application made on notice—

(a) to the person from whom discovery is sought; and

(b) to the intended defendant.]

300 Order For Particular Discovery Against Party After Proceeding Commenced

Where at any stage of the proceeding it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody, or power of a party, the Court may order that party—

(a) to file an affidavit stating whether that document or (as the case may be) any document of that class is or has been in his possession, custody, or power and, if it has been but is no longer in his possession, custody, or power, when he parted with it and what has become of it; and

(b) to serve the affidavit on any other party.

301 Order For Particular Discovery Against Non-Party After Proceeding Commenced

(1) Where, in the circumstances referred to in rule 300, it appears that the document or class of document may be or may have been in the possession, custody, or power of a person who is not a party, the Court may order that person—

(a) to file an affidavit stating whether that document or (as the case may be) any document of that class is or has been in his possession, custody, or power and, if it has been but is no longer in his possession, custody, or power, when he parted with it and what has become of it; and

(b) to serve the affidavit on any party.

(2) An application for an order under subclause (1) shall be made on notice to the person from whom discovery is sought and to every other party who has filed an address for service.

302 Expenses

Where an order is made under rule 299(1) or rule 301(1), the Court may, if it thinks fit, order the applicant to pay to the person from whom discovery is sought his expenses (including solicitor and client costs) of and incidental to the application and in complying with any order made thereon.

[303 Who May Swear Affidavit Verifying List of Documents

(1) An affidavit verifying a list of documents under a notice or order given or made under any of the provisions of rules 293 to 304 may be made as follows:

(a) By the person required to make the list:

(b) If the person required to make the list is a minor or a mentally disordered person, by the person’s next friend, guardian ad litem, or manager:

(c) If the person required to make the list is a corporation or a body of persons empowered by law to sue or be sued (whether in the name of the body or in the name of the holder of an office), by a person who meets the requirements of rule 517:

(d) If the person required to make the list is the Crown, an officer of the Crown who sues or is sued in an official capacity, or as representing a Government department, by an officer of the Crown.

(2) Despite subclause (1), where paragraph (c) or paragraph (d) of that subclause applies, and the affidavit is to be filed and served in accordance with an order, the Court may—

(a) Specify by name or otherwise the person to make the affidavit; or

(b) Specify by description or otherwise the persons from whom the person required to verify the list may choose the person to make the affidavit.]

304 Incorrect List to Be Amended

If, by reason of any change of circumstances or from the discovery of any error or omission, any list of documents filed pursuant to any notice given or order made under any of the provisions of rules 293 to 304 appears to the party giving discovery to be defective or erroneous, he shall forthwith file and serve an amended list or, if the amendment is necessary solely to remedy an omission, at his option, a supplementary list, and shall, if the original list has been verified, verify the amended or supplementary list.

305 Effect of Failure to Include Document

No document which should have been included in a list filed by a party may, without the consent of the other party or parties or the leave of the Court, be produced in evidence at the trial unless it has been included in his list of documents.

306 Notice to Produce For Inspection

(1) Where a pleading, list, or affidavit filed by a party or any other person refers to a document, any party or the intending plaintiff (as the case may be) on whom it is served may, by notice to produce served on the party or other person who has filed the pleading, list, or affidavit, require him to produce the document for inspection.

(2) Where a notice to produce a document is served on a party or any other person under subclause (1), he shall, within 4 days after that service, serve on the party requiring production a notice—

(a) Appointing a time within 7 days after service of the notice under this subclause when, and a place where, the document may be inspected; or

(b) Claiming that the document is privileged from production and sufficiently stating the ground of the privilege; or

(c) Stating that the document is not in his possession, custody, or power and stating to the best of his knowledge, information, and belief, where the document is and in whose possession, custody, or power it is.

307 Order For Production For Inspection

(1) Where it appears to the Court—

(a) From a pleading, list, or affidavit filed by a party or any other person, that any relevant document is in the possession, custody, or power of that party or person; or

(b) From the evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that any relevant document is in the possession, custody, or power of a party or any other person—

the Court may, unless the document is privileged from production, order that party or other person to produce the document for inspection by any party or intending plaintiff at a time and place specified in the order, or to serve on any party or intending plaintiff a copy of the whole or any part of the document, with or without an affidavit verifying the copy by a person who has examined the document and the copy.

(2) An affidavit made pursuant to an order under subclause (1) shall, unless the Court otherwise orders, state whether there are in the document copied any and, if so, what erasures, interlineations, or alterations.

308 Costs of Production By Non-Party

The Court may, if it thinks fit, order that the expenses (including solicitor and client costs) incurred by any person who is not a party to a proceeding already commenced of or incidental to compliance with a notice under rule 306 or an order under rule 307 be paid by the party to whom the document or copy, as the case may be, is produced.

309 Right to Make Copies

(1) A party to whom a document is produced for inspection under rule 306 or rule 307 may make copies of the document.

(2) On the application of a party to whom a document is produced for inspection under rule 306 or rule 307, the Court may order that the party having the document in his possession, custody, or power shall furnish the applicant with a legible copy.

(3) An order under subclause (2) may be made on such terms as the Court thinks fit, and in particular the Court may order the applicant to pay the reasonable expenses of the other party, and may order that the document be marked to the effect that it is a copy furnished for purposes of inspection only.

(4) A party who obtains a copy under this rule—

(a) Shall make use of that copy only for the purposes of the proceeding; and

(b) Except for the purposes of the proceeding, shall not make it available to any other person.

310 Production to the Court

The Court may, at any stage of any proceeding, order any party or person to produce to the Court any document in his possession, custody, or power relating to any matter in question in the proceeding, and on production of such document the Court may deal with it in such manner as the Court thinks fit.

311 Inspection to Decide Objection

(1) Where an application is made for an order under rule 307 for the production of any document for inspection by another party or for an order under rule 310, for the production of any document to the Court, and a claim is made that the document is privileged from production or an objection to production is made on any other ground, the Court may inspect the document for the purpose of deciding the validity of the claim or objection.

(2) It shall not be a valid claim of privilege that the document relates solely to the case of the party claiming privilege or that the fact or otherwise of the existence of the document is a substantial issue in the proceeding.

312 Order Only If Necessary

The Court shall not make an order under any of the provisions of rules 297 to 310 for the filing or service of any list of documents or affidavit or other document or for the production of any document unless satisfied that the order is necessary at the time when the order is made.

[317A Contempt of Court

(1) Every person is guilty of contempt of Court who,—

(a) Being a person from whom discovery is sought by an order made pursuant to rule 299(1) or rule 301(1), wilfully and without lawful excuse disobeys the order or fails to ensure that the order is complied with; or

(b) Being a person who is not a party to the proceeding and who is required by an order made under rule 307 to produce for inspection the whole or part of a document, wilfully and without lawful excuse disobeys the order or fails to ensure that it is complied with; or

(c) Being a person who is not a party to the proceeding and who is required by an order made under rule 310 to produce a document, wilfully and without lawful excuse fails to produce the document or thing in accordance with the order.

(2) Nothing in this rule limits or affects any power or authority of the Court to punish any person for contempt of Court.]