NSW UCPR [Form 11] List of Documents to Comply with an Order for Discovery

When is a NSW UCPR [Form  11] List of Documents to Comply with an Order for Discovery used?

See UCPR 21.3 for more information.

You MUST prepare a List of Documents when you comply with an Order for Discovery.

Claiming Privilege to Avoid Disclosure of Documents

You should refer to the Evidence Act 1995 (NSW) Part 3.10 for more information in relation to the types of privilege and the circumstances under which any privilege you intend to claim in respect of any documents referred to in your list of documents arises.

Document Inspection Obligations

See UCPR 21.5 for more information about your obligations to keep and make available for inspection the documents referred to in your List of Documents.

You may be requested to produce those documents for inspection under UCPR 21.5.

You may be required to provide facilities in order that those documents can be inspected and photocopied.

You may also be obliged to provide assistance to the inspecting party with the location and identification of documents in your list.

You will usually be entitled to the reimbursement of your reasonable expenses incurred in providing photocopies.

Confidentiality to be Maintained

21.7 Discovered documents not to be disclosed

(cf SCR Part 23, rule 3(11) and (12); DCR Part 22, rule 3(11) and (12))

(1) No copy of a document, or information from a document, obtained by party A as a result of discovery by party B is to be disclosed or used otherwise than for the purposes of the conduct of the proceedings, except by leave of the court, unless the document has been received into evidence in open court.

(2) Nothing in subrule (1) affects the power of the court to make an order restricting the disclosure or use of any document, whether or not received into evidence, or the operation of any such order.

Affidavit in Support

You MUST prepare an Affidavit verifying your List of Documents - see UCPR 21.4 for more information.

Note : See rule 35.3 as to who may make such an Affidavit.

Solicitor's Certificate of Advice

UCPR 21.4(3) mandates:

The Solicitor's Certificate of Advice referred to in subrule (1)(b) MUST state that the solicitor--

(a) has advised party B as to the obligations arising under an order for discovery (and if party B is a corporation, which officers of party B have been so advised), and

(b) is not aware of any documents within any of the classes specified in the order (other than excluded documents) that are, or that within the last 6 months before the commencement of the proceedings have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents).

Mandatory Requirements [Parts 1 & 2, etc.]

UCPR Reg 21.3 List of Documents

The list of documents--

(a) MUST be divided into two parts--

(i) Part 1 relating to documents in the possession of party B, and

(ii) Part 2 relating to documents that are not, but that within the last 6 months prior to the commencement of the proceedings have been, in the possession of party B, and

(b) MUST include a brief description (by reference to nature and date or period) of each document or group of documents and, in the case of a group, the number of documents in that group, and

(c) MUST specify, against the description of each document or group in Part 2 of the list of documents, the person (if any) who party B believes to be in possession of the document or group of documents, and

(d) MUST identify any document that is claimed to be a privileged document, and specify the circumstances under which the privilege is claimed to arise.

If it is more convenient to set out Parts 1 and 2 of the list of documents in ‘landscape’ format, you may do so.

Time Limits to Comply

(3) Party B MUST comply with the requirements of subrule (1)--

(a) within 28 days after an order for discovery is made, or

(b) within such other period (whether more or less than 28 days) as the order may specify.

Ongoing Duty of Disclosure

21.6 Subsequently found documents to be made available

(cf SCR Part 23, rule 3(8); DCR Part 22, rule 3(8))
If at any time after party B's Affidavit is made, and before the end of the hearing, party B becomes aware--

(a) that any document within the class or classes specified in the relevant order for discovery (not being an excluded document) but not included in Part 1 of the list of documents is within, or has come into, party B's possession, or

(b) that any document included in Part 1 of the list of documents which was claimed to be a privileged document was not, or has ceased to be, a privileged document,

party B MUST forthwith give written notice to party A of that fact, and comply with rule 21.5 in respect of the document, as if the document had been included in Part 1 of the list of documents and the list had been served on the date of the giving of the notice.

Document Overview:

✅ Suitable for the NSW Courts under the Uniform Civil Procedure Rules (NSW) 2005;

✅ Recommended only for use by legal professionals +/or at a minimum with review by a legal professional prior to filing with the Court;

✅ For use in all NSW Court registries for all NSW Courts including Local (General & Small Claims), District (All Lists^), Supreme (Common Law & Equity Divisions) and all Appeals to the NSW Court of Appeal.

Embedded Lawyer-Logic™ dynamically adapts to your answers to provide valuable guidance and help you avoid errors.

Legal Advice Recommended

The preparation of a List of Documents has important strategic legal implications.

In short, due to the complexities involved:

➲ We recommend you contact our legal team to obtain legal advice and guidance.

Important Notes:

The party preparing this Form is required to serve a copy of the Form on all other parties to the proceeding.