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K13.5. A different approach
| 420. | Part 23 of the Supreme Court Rules 1970 of New South Wales provides a different approach to the regulation of discovery which may be considered by way of contrast. |
| 421. | No automatic discovery is provided for. Instead, rule 23.2(1) gives each party the right to serve a notice requiring discovery from another party, presumably only if he chooses to do so. What a party is entitled to seek by way of such a notice is limited to production of non-privileged documents referred to in the other party's originating process, pleading, affidavit or witness statement and :- |
| "any other specific document (other than a privileged document) clearly identified in the notice, relevant to a fact in issue." | ||
| However, in relation to this latter class, the requesting party is limited to obtaining 50 documents under this rule. | |
| 422. | By rule 23.1(d) :- |
| "a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material which could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence." | ||
| 423. | If, after getting the discovery by request, more documents are sought, an order of the court must be sought. Such an order might identify the documents to be produced by relevance to one or more facts in issue; by description of the nature of the documents and the period within which they were brought into existence; or in some other way. The party against whom the order is made has to serve a list of such documents within his possession, custody or power. |
| 424. | The court is given wide and flexible powers. (Note 380) It may, for instance, on the application of a party or of its own motion, discharge, vary or extend any of the obligations arising under the abovementioned rules. It is also vested with extensive powers of sanction where there is non-compliance with discovery orders. |
| 425. | In the light of the foregoing discussion, readers are asked whether any of the abovementioned changes relating to discovery should be adopted in Hong Kong: Proposals 25 to 29. (Note 381) |
Notes
| 380 | By rule 23.3. <back> |
| 381 | Additionally, although outside the Working Party's remit, thought might be given to amending the Personal Data (Privacy) Ordinance, Ch 486, to eliminate any possible suggestion that discovery procedures have been inhibited in respect of documents concerning information qualifying as "personal data" within that Ordinance. Mr Robin McLeish has pointed to apt exemptions provided in the comparable United Kingdom legislation: Discovery and Data Protection (2001) 31 HKLJ 48, 56. <back> |
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