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PAD96

The Art of Discovery and Interrogatories

NZ $36.00
incl GST
Author(s): Raynor Asher QC, Colin Doherty
Published: 10 June, 1996
Pages: 95

   

Introduction

 
The mastery of the rules of procedure is an essential qualification for a litigation lawyer. And, there is probably no branch of the law of civil procedure governing trial actions which is of greater practical importance than discovery. (John Steyn, The Foreword to Discovery, Matthews and Malek, (1992 Sweet and Maxwell)).

The importance of discovery cannot be overstated.

While the statement of claim in an action may be regarded as the “engine” of a case, the list of documents, and if appropriate interrogatories, may be seen as the “fuel”. It is often the case that proper conduct of the process of discovery and interrogatories can constitute the difference between success and failure. In this age of faxes and photocopiers and telephone accounts there are few important elements of a transaction that do not have some sort of documentary corroboration. It is your task as counsel to make sure that all the material that is available to assist your case can be put before the court.

Litigation is often prohibitively expensive. Discovery and interrogatories can play an important role in obtaining a good settlement. If by hard work the documents you need or the information you need are obtained, then a satisfactory result can be obtained more readily by settlement. In other words these processes are not just part of a mindless trudge to Court. They can provide a breakthrough, which enables a quick result.

This paper is an attempt to marry elements of academic analysis with practical steps, advice and examples. It is not designed as a substitute for reference texts nor is it necessarily a “one stop shop” for litigators. There are several texts on the subject of discovery, but the most often used and quoted reference material available in New Zealand is that contained in McGechan on Procedure.

The principles of the discovery process (originally an invention of the Courts of Equity) have evolved over a long period and in New Zealand have culminated in codification under the High and District Court Rules. The starting points for analysis of the principles are these Rules.

There is legislation other than the Judicature Act 1908 and the District Courts’ Act 1992 which sets out various ancillary procedures or invokes directly the procedures of the High or District Court Rules eg Matrimonial Property Act 1976 (s 53(4)), Matrimonial Property Rules 1976 (r 12), The Family Proceedings Rules 1981 (r 49), Resource Management Act 1991 (s 278(2)).

Whilst these “specialist” legislative enactments may have procedures which are not based on the High or District Court Rules, in the aspect of discovery, the principles discussed with reference to the Rules in this paper will generally apply.

The authors have primarily referred to the High Court Rules as these were largely transplanted into the District Court Rules in 1992. Where appropriate, the text refers to the equivalent District Court Rule by enclosing it in square brackets, thus [ ].

 

Content outline

  • What you should know before commencing discovery
  • Relevance
  • Privilege
  • Discovery before proceeding commenced (pre issue discovery)
  • Non party discovery
  • Inspection
  • Further and better discovery and related applications and issues
  • Interrogatories
  • Drafting documents
  • Errors and omissions
  • Ethics
  • Getting into Court
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