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Endnotes

[1] The District Court Rules, being in all essential respects identical to the High Court Rules, will not be discussed separately in this report.

[2] There is a process to enable access to a third party's documents which is outside the scope of this report.

[3] High Court Rules, rule 293.

[4] Order XXXI Rule 12.

[5] Rule 161 of the Code of Civil Procedure annexed as the Second Schedule to the Supreme Court Act 1882.

[6] (1882) 11 QBD 55, 62_63.

[7] See the observations of Priestley J in Air New Zealand Limited v Auckland International Airport Limited HC Auckland, M1634-SD/00.

[8] Law Commission Reforming the Rules of General Discovery nzlc pp45 (Wellington, 2001), para 12.

[9] Law Commission, above n 8, para 11. The comment of Telecom New Zealand Limited on this passage was:

... Telecom's experience is that the time required to complete the discovery process of major commercial litigation can run into years, not months, at a cost at times in excess of $100,000 per month. The discovery costs alone of major commercial litigation may exceed $1 million. Almost invariably, only a tiny proportion of that cost, perhaps as little as 10%, represents discovery of documents of any material benefit to any party.

[10] Lord Woolf Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO, London, 1995) 167.

[11] Law Commission, above n 8, para 7.

[12] Above n 11.

[13] Law Commission, above n 8, paras 12, 13 and 14.

[14] High Court Rules, rule 300.

[15] High Court Rules, rule 312.

[16] Uniform Civil Procedure Rules 1999 r 211(1)(b) (Queensland), Australian Federal Court Rules O15 r 2(3), Civil Procedure Rules 1998 r 31.6 (England and Wales) all of which are to be found in Appendix B.

[17] GL Davies "A Blueprint for Reform: Some Proposals of the Litigation Reform Commission and their Rationale" (1993) 5 J Jud Admin 201, 213.

[18] Similarly in the District Court the Practice Note provides, in the case of "Swift Track" actions (that is, "cases which are quite uncomplicated or have a modest amount at stake"), for no more than an informal exchange of documents.

[19] This model is taken from the decision of Master Williams QC in Attorney-General v Wang NZ Limited (1980) 2 PRNZ 245, 252. See also Hunyady v Attorney-General [1968] NZLR 1172 (CA) and Endeavour Productions Limited v Petersen (1990) 2 PRNZ 366.

[20] Law Commission, above n 8, para 5.

[21] High Court Rules, rule 317A.

[22] A solicitor must be personally satisfied with the adequacy of the list of documents (Woods v Martins Bank Ltd [1959] 1 QB 55, 60):

The swearing of an untrue affidavit of documents is perhaps the most obvious example of conduct which his solicitor cannot knowingly permit. He must assist and advise his client as to the latter's bounden duty in that matter; and if the client should persist in omitting relevant documents from his affidavit, it seems to me plain that the solicitor should decline to act for him any further. (Myers v Elman [1940] AC 282, 292 per Viscount Maugham.)

For a more discursive statement of the duty of solicitors to make their clients toe the line, see Rockwell Machine Tool Co Ltd v EP Barrus (Concessionaires) Ltd [1968] 2 All ER 98, 99.

[23] Law Commission, above n 8, para 8.

[24] Justice Williams, letter to the Commission dated 7 November 2001.

[25] Above n 24.

[26] On this see Latham CJ in Foster v Federal Commissioner of Taxation (1951) 82 CLR 606, 615.

[27] There is a discussion of the rationale for the new rules in GL Davies and SA Sheldon "Some Proposed Changes in Civil Procedure: Their Practical Benefits and Ethical Rationale" (1993) 3 J Jud Admin 111, 117, and GL Davies "A Blueprint for Reform: Some Proposals of the Litigation Reform Commission and their Rationale" (1996) 5 J Jud Admin 201, 213.

[28] DA Ipp "Reforms to the Adversarial Process in Civil Litigation _ Part II" (1995) 69 ALJ 790, 793.

[29] There is a discussion by the Australian Law Reform Commission of the functioning of the Federal Rules in Managing Justice: A Review of the Federal Civil Justice System (ALRC No 89, Australian Law Reform Commission, Sydney, 1999) 416_418.

[30] See above n 10.

[31] Lord Woolf Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO, London, 1996).

[32] Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia: Consultation Drafts Volume 1 (Perth, 1999), 103.

[33] See above n 32, ch 2.6, 369_414.