Discovery Of Documents

September 8, 2010

Discovery of documents allows for the other side to obtain material documents which are in the possession, custody or power of the person giving discovery. Possession is defined as the right to possession of the document. Custody for the purpose of discovery is defined as the actual, physical or corporeal holding of a document regardless of the right of possession. Power for the purpose of discovery is defined as an enforceable right to inspect the document or obtain possession or control of the document from the person ordinarily has it in fact. Documents which are in the possession or power of the agent for the party are in possession or power of the party for discovery purposes. A document in the hands of a third person is not within the power of a party if the party can only inspect the document if the third person agrees to permit inspection, or agrees to refrain from so exercising control of the document as to prevent inspection: Taylor v Santos Ltd (1998) 71 SASR 434

Under rule 29.02(1) of the Supreme Court (General Civil Procedure) Rules 2005 material documents which once were but no longer are in the possession of the party making discovery must be disclosed in the party’s affidavit of documents. The fact that the document cannot be produced does not mean the document should be omitted from the affidavit. Rule 29.04(c) states that the party having disposed of the material document must state when he parted with the document and his belief of what become of it. The destruction by a party of material documents in its possession prior to the commencement of the instant litigation to the prejudice of the other party will ordinarily be irrelevant. However, apart from possibly affording a basis for the drawing of adverse inferences, such conduct may warrant the intervention of the court if it amounts to an attempt to pervert the course of justice: British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524. A party who has parted with possession of material documents is obliged to make proper inquiries from the persons in whose possession they are now in order to be able to identify the documents and then describe them in the affidavit of documents: Re McGorm; Ex parte Co-op Building Society of South Australia (1989) 20 FCR 387

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