Commonwealth Consolidated Regulations

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Application for order for disclosure

             (1)  A party may seek an order that:

                     (a)  another party comply with a request for a list of documents in accordance with rule 13.20;

                     (b)  another party disclose a specified document, or class of documents, by providing to the other party a copy of the document, or each document in the class, for inspection by the other party;

                     (c)  another party produce a document for inspection;

                     (d)  a party file an affidavit stating:

                              (i)  that a specified document, or class of documents, does not exist or has never existed; or

                             (ii)  the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of that party; or

                     (e)  the party be partly or fully relieved of the duty of disclosure.

             (2)  A party making an application under subrule (1) must satisfy the court that the order is necessary for disposing of the case or an issue or reducing costs.

Note 1:       Before making an application under this Chapter, a party must make a reasonable and genuine attempt to settle the issue to which the application relates (see rule 5.03).

Note 2:       An application under this Chapter is made by filing an Application in a Case and an affidavit (see rules 5.01 and 5.02). The court may allow an oral application at the conciliation conference or another court event.

             (3)  In making an order under subrule (1), the court may consider:

                     (a)  whether the disclosure sought is relevant to an issue in dispute;

                     (b)  the relative importance of the issue to which the document or class of documents relates;

                     (c)  the likely time, cost and inconvenience involved in disclosing a document or class of documents taking into account the amount of the property, or complexity of the corporate, trust or partnership interests (if any), involved in the case; and

                     (d)  the likely effect on the outcome of the case of disclosing, or not disclosing, the document or class of documents.

             (4)  If the disclosure of a document is necessary for the purpose of resolving a case at the conciliation conference, a party (the requesting party ) may, at the first court event, seek an order that another party:

                     (a)  provide a copy of the document to the requesting party; or

                     (b)  produce the document to the requesting party for inspection and copying.

             (5)  The court may only make an order under subrule (4) in exceptional circumstances.

             (6)  If a party objects to the production of a document for inspection or copying, the court may inspect the document to decide the objection.

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