Commonwealth Consolidated Regulations

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FAMILY LAW RULES 2004 - RULE 26B.09

Applications for orders relating to disclosure

Applications by a party to an arbitration

             (1)  A party to an arbitration may apply for an order that the party be partly or fully relieved of the duty of disclosure under subrule 26B.01(1).

             (2)  If:

                     (a)  a party to an arbitration (the requiring party ) gives another party to the arbitration (the disclosing party ) a notice under subrule 26B.04(1), 26B.07(2) or 26B.07(5); and

                     (b)  the disclosing party fails to comply with the notice; and

                     (c)  either:

                              (i)  the disclosing party has not made a claim under rule 26B.06 in relation to a document to which the notice relates; or

                             (ii)  the disclosing party has made such a claim, and the arbitrator has determined the claim under subrule 26B.06(3) or has notified the parties under subrule 26B.06(4) in relation to the claim;

the requiring party may apply for an order under subrule (3).

             (3)  For subrule (2), the requiring party may apply for an order that the disclosing party:

                     (a)  comply with a notice given by the requiring party to the disclosing party under subrule 26B.04(1), 26B.07(2) or 26B.07(5); or

                     (b)  disclose a document or class of documents to the requiring party by providing a copy of the document or documents or producing the document or documents for inspection; or

                     (c)  give the requiring party and the arbitrator a written statement:

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

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

Applications by an arbitrator

             (4)  An arbitrator may apply for an order that:

                     (a)  a party to the arbitration comply with a notice given to the party under subrule 26B.04(1), 26B.07(2) or 26B.07(5); or

                     (b)  a party to the arbitration comply with a determination by the arbitrator under subrule 26B.06(3); or

                     (c)  a party to the arbitration give the arbitrator and each other party to the arbitration a written statement:

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

                             (ii)  setting out 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.

Note:          For additional powers of the arbitrator, see subregulation 67N(1) of the Regulations.

All applications

             (5)  An application under this rule must be made by filing:

                     (a)  an application in accordance with the approved form; and

                     (b)  an affidavit stating the facts relied on in support of the application.

             (6)  A person making an application under this rule must satisfy the court that the order is necessary to facilitate the effective conduct of the arbitration.

Note:          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).

             (7)  In making an order under this rule, the court may consider the following:

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

                     (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 arbitration;

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

             (8)  If a party to an arbitration objects to the production, in accordance with an order under this rule, of a document for inspection or copying, the court may inspect the document to decide the objection.



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