ORDER 9.-DISCOVERY, INTERROGATORIES AND ADMISSIONS.
Division 1.-Discovery and Inspection of Documents.
Subdivision A.-Discovery.
1. Notice for discovery. (23/1)
(1) Subject to this Rule, where the pleadings between any parties are closed, any of those parties may, by notice for discovery in Form 30 filed and served on any other of those parties, require the party served to give discovery of documents, with or without verification.
(2) A party may require another party to give discovery with verification notwithstanding that he has previously required the same party to give discovery without verification.
(3) This Rule does not apply to proceedings on a claim for damages arising out of the death of, or bodily injury to, any person for contribution in respect of damages so arising.
2. Discovery on notice. (23/2)
(1) A party required under Rule 1 to give discovery shall, subject to Sub-rule (2), give discovery within such time, not being less than 14 days after service on him of the notice for discovery, as may be specified in the notice for discovery.
(2) A party required under Rule 1 to give discovery without verification shall, subject to Rule 3, give discovery by filing and serving on the party giving the notice for discovery a list in accordance with Rule 6 of documents relating to any matter in question between him and the party giving the notice for discovery.
(3) A party required under Rule 1 to give discovery with verification shall, subject to Rule 3, give discovery by filing and serving on the party giving the notice for discovery -
(a) an affidavit verifying the list referred to in Sub-rule (2); and
(b) the list so verified, unless the list has already been filed and served on that party.
(4) Where a claim is made against a party -
(a) for the recovery of any penalty recoverable by virtue of any Act; or
(b) for the enforcement of a forfeiture,
he need not include in a list of documents under this Rule any document relating only to a matter in question on that claim.
3. Limitation of discovery on notice. (23/3)
(1) The Court may, before or after any party has been required under Rule 1 to give discovery, order that discovery under Rule 2 by any party shall not be required or shall be limited to such documents or classes of documents, or to such of the matters in question in the proceedings, as may be specified in the Order.
(2) The Court shall, on application, make such orders under Sub-rule (1) as are necessary to prevent unnecessary discovery.
4. Co-defendants. (23/4)
Where a plaintiff claims relief against two or more defendants, and requires any defendant to give discovery under Rule 2, that defendant shall serve his list of documents and affidavit (if any) not only on the plaintiff but also on each other defendant who has filed a defence.
5. Order for general discovery. (23/5)
The Court may, at any stage of any proceedings, order any party to file and serve on any other party -
(a) a list in accordance with Rule 6 of documents relating to any matter in question in the proceedings; or
(b) a list as mentioned in Paragraph (a) verified by affidavit.
6. Contents of list. (23/6)
(1) A list of documents required by or under this Division shall, unless the Court otherwise orders, conform to the requirements of this Rule, and be in Form 31.
(2) A list of documents shall enumerate the documents which are or have been in the possession, custody or power of the party making the list.
(3) A list of documents shall enumerate the documents in a convenient sequence and as shortly as possible, but shall describe each document or, in the case of a group of documents of the same nature, shall describe the group, sufficiently to enable the document or group to be identified.
(4) Where a party making a list of documents claims that any document in his possession, custody or power is privileged from production, he shall, in the list, sufficiently state the grounds of the privilege.
(5) A list of documents shall distinguish those documents which are in the possession, custody or power of the party making the list from those that have been but are not in his possession, custody or power.
(6) A list of documents shall, as to any document which has been but is not then in the possession, custody or power of the party making the list, state when he parted with the document and what has become of it.
(7) A list of documents shall appoint a time within seven days after service of the list when, and a place where, the documents in the list may be inspected.
(8) Where a party making a list of documents has a solicitor in the proceedings, the solicitor shall certify on the list that, according to his instructions, the list and the statements in the list are correct.
7. Order for particular discovery. (23/7)
Where, at any stage of the proceedings, it appears, to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceedings that there are grounds for a belief that some document or class of document relating to any matter in question in the proceedings may be or may have been in the possession, custody or power of a party, the Court may order that party -
(a) to file an affidavit stating whether that document or any document of that class is or has been in his possession, custody or power and, if it has been but is not then in his possession, custody or power, when he parted with it and what has become of it; and
(b) to serve the affidavit on any other party.
8. Deponent. (23/8)
(1) Subject to Sub-rule (2) an affidavit verifying a list of documents of a party or an affidavit to be filed by a party pursuant to an order under Rule 7 may be made -
(a) by the party; or
(b) where the party is a disabled person-by his next friend, or guardian at law; or
(c) where the party is a corporation-by a member or officer of the corporation; or
(d) where the party is a body of persons lawfully suing or being sued in the name of the body or in the name of any officer or other person-by a member or officer of the body; or
(e) where the party is the Independent State of Papua New Guinea or an officer of the State suing or sued in his official capacity-by an officer of the State.
(2) Where the party is a person to whom Sub-rule (1)(c), (d) or (e) applies and the affidavit is to be filed and served pursuant to an order, the Court may -
(a) specify by name or otherwise the person to make the affidavit; or
(b) specify by description or otherwise the persons from whom the party may choose the person to make the affidavit.
(3) Subject to Sub-rule (2), where the party is a person to whom Sub-rule (1)(c),(d) or (e) applies, the party shall choose a person to make the affidavit who is qualified under the relevant paragraph and has knowledge of the facts.
Subdivision B.-Inspection.
9. Document referred to in pleading or affidavit. (23/9)
(1) Where a pleading or affidavit filed by a party refers to a document, any other party may, by notice to produce served on him, require him to produce the document for inspection.
(2) A notice to produce under this Rule shall be in Form 32.
(3) Where a notice to produce a document is served on a party under Sub-rule (1), he shall, within four days after that service, serve on the party requiring production or his guardian at law, a notice -
(a) appointing a time within seven days after service of the notice under this Sub-rule when, and a place where, the document may be inspected; or
(b) claiming that the document is privileged from production and sufficiently stating the grounds of the privilege; or
(c) stating that the document is not in his possession, custody or power and stating to the best of his knowledge, information and belief where the document is and in whose possession, custody and power it is.
(4) A notice under Sub-rule (3)(a) shall be in Form 33.
10. Order for production. (23/10) (1)
Where -
(a) it appears from a list of documents filed by a party under this Division that any document is in his possession, custody or power; or
(b) a pleading or affidavit filed by a party refers to any document; or
(c) it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceedings that there are grounds for a belief that any document relating to any matter in question in the proceedings is in the possession, custody or power of a party,
the Court may, unless the document is privileged from production, order the party-
(d) to produce the document for inspection by any other party at a time and place specified in the order; or
(e) to file and serve on any other party a copy of the whole or any part of the document, with or without an affidavit verifying the copy made by a person who has examined the document and the copy.
(2) An affidavit made pursuant to an order under Sub-rule (1)(e) shall, unless the Court otherwise orders, state whether there are in the documents copied any and, if so what, erasures, interlineations or alterations.
11. Power to make copies. (23/11)
A party to whom a document is produced for inspection under this Division may make copies of the document.
12. Production to the Court. (23/12)
(1) The Court may, at any stage of any proceedings, order any party to produce to the Court any document in his possession, custody or power relating to any matter in question in the proceedings.
(2) On production of a document to the Court pursuant to an order under Sub-rule (1), the Court may deal with the document in such manner as it thinks fit.
13. Inspection to decide objection. (23/13)
Where an application is made for an order under Rule 10 for the production of any document for inspection by another party, or for an order under Rule 12 for the production of any document to the Court, and a claim is made that the document is privileged from production, or an objection to production is made on any other ground, the Court may inspect the document for the purpose of deciding the validity of the claim or objection.
Subdivision C.-General.
14. Order only if necessary. (23/14)
The Court shall not make an order under this Division for the filing or service of any list of documents or affidavit or other document, or for the production of any document unless satisfied that the order is necessary at the time when the order is made.
15. Default. (23/15)
(1) Where a party makes default in filing or serving a list of documents or affidavit or other document, or in producing any document as required by or under this Division, the Court may make such order as it thinks fit, including -
(a) if the party in default is a plaintiff-an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceedings; or
(b) if the proceedings were commenced by writ of summons and the party in default is a defendant-an order that his defence be struck out and that judgement be entered accordingly.
(2) Where a party has a solicitor -
(a) an order under any of the Rules of this Division need not, for the purposes of enforcement of the order by committal or sequestration, be served personally; but
(b) if the order has not been served personally, the order shall not be enforced by committal of any person or by sequestration of the property of any person if that person shows that he did not have notice or knowledge of the order within sufficient time for compliance with the order.
(3) Where a party has a solicitor, and an order under this Division against the party is served on the party by leaving a copy of the order at the office of, or posting it to, the solicitor or his agent, the solicitor shall, if he fails without reasonable cause to notify the party of the order, be guilty of professional misconduct.
16. Public interest. (23/16)
This Division does not affect any rule of law which authorizes or requires the withholding of any document on the ground that its disclosure would be injurious to the public interest.
Division 2.-Interrogatories.
17. Interrogatories by notice. (24/1)
(1) Subject to Sub-rule (3), where the pleadings between any parties are closed, any of those parties may file and serve on any other of those parties a notice requiring the party served to answer specified interrogatories relating to any matter in question between the interrogating party and the party served.
(2) The notice may require that the answers be verified, and may so require notwithstanding that the interrogating party has previously required all or any of the interrogatories to be answered without requiring the answers to be verified.
(3) This Rule does not apply to proceedings on a common law claim for damages arising out of the death of, or bodily harm to, any person or for contribution in respect of damages so arising.
(4) A notice under this Rule shall be in Form 34.
(5) Subject to Sub-rule (2), a party shall not serve more than one notice under Sub-rule (1) on the same party without the leave of the Court.
18. Answers pursuant to notice. (24/2)
(1) A party who is required under Rule 17 to answer interrogatories shall, subject to Rule 19 answer the interrogatories within such time, not being less than 14 days after service on him of the notice under Rule 17, as may be specified in the notice.
(2) A party who is required under Rule 17 to answer interrogatories but is not required to verify his answers shall, subject to Rule 19, answer the interrogatories by filing and serving on the party requiring the answers a statement in accordance with Rule 22.
(3) A party who is required under Rule 17 to answer interrogatories and to verify his answers shall, subject to Rule 19, answer the interrogatories by filing and serving on the party requiring the answers -
(a) an affidavit verifying a statement in accordance with Rule 22; and
(b) the statement so verified, unless the statement has already been filed and served.
19. Limitation of interrogatories by notice. (24/3)
(1) The Court may, before or after any party has been required under Rule 17 to answer interrogatories, order that answers to interrogatories under Rule 18 by any party shall not be required, or shall be limited to such interrogatories or classes of interrogatories, or to such of the matters in question in the proceedings, as may be specified in the order.
(2) Where any party has been required under Rule 17 to answer any interrogatory, the Court may, on application by him, order that an answer to that interrogatory shall not be required or may limit the extent to which an answer shall be required.
(3) The Court shall, on application, make such orders under Sub-rules (1) and (2) as are necessary to prevent unnecessary interrogatories or unnecessary answers to interrogatories.
20. Co-defendants. (24/4)
Where a plaintiff claims relief against two or more defendants, and requires any defendant to answer interrogatories under Rule 18, that defendant shall serve his statement in answer and affidavit (if any) not only on the plaintiff but also on each other defendant who has filed a defence.
21. Order to answer. (24/5)
(1) The Court may, at any stage of any proceedings, order any party to file and serve on any other party (whether the interrogating party or not) -
(a) a statement in accordance with Rule 22 in answer to interrogatories specified or referred to in the order relating to any matter in question in the proceedings; or
(b) a statement as mentioned in Paragraph (a) verified by affidavit.
(2) The Court shall not make an order under Sub-rule (1) unless satisfied that the order is necessary at the time the order is made.
22. Contents of statement. (24/6)
(1) A statement in answer to interrogatories required by or under this Division shall, unless the Court otherwise orders, conform to the requirements of this Rule.
(2) A statement under Rule 21 shall be in Form 35 or 36.
(3) A statement in answer to interrogatories shall deal with each interrogatory specifically -
(a) by answering the substance of the interrogatory without evasion; or
(b) by objecting to answer the interrogatory on one or more of the grounds mentioned in Sub-rule (4) and briefly stating the facts on which the objection is based.
(4) Subject to Sub-rule (5), a party may object to answer any interrogatory only -
(a) where the answer is not required by an order that the interrogatory does not relate to any matter in question between him and the party requiring the answer; or
(b) that the interrogatory is vexatious or oppressive; or
(c) privilege.
(5) On an application under Rule 19(2) or 21 in respect of any interrogatory, the Court may require the applicant to specify on what grounds he objects to answer that interrogatory and may determine the sufficiency of that objection and, if the Court determines that the objection is not sufficient, the applicant shall not be entitled to object to answer that interrogatory in a statement in answer to interrogatories.
23. Deponent. (24/7)
(1) Subject to Sub-rule (2), an affidavit verifying a statement of a party in answer to interrogatories may be made
(a) by the party; or
(b) where the party is a disabled person-by his next friend; or
(c) where the party is a corporation-by a member or officer of the corporation; or
(d) where the party is a body of persons lawfully suing or being sued in the name of the body or in the name of any officer or other person-by a member or officer of the body; or
(e) where the party is the Independent State of Papua New Guinea, or an officer of the State suing or sued in his official capacity-by an officer of the State.
(2) Where the party is a person to whom Sub-rule (1)(c), (d) or (e) applies, and the affidavit is to be filed and served pursuant to an order, the Court may, in relation to any or all of the interrogatories -
(a) specify by name or otherwise the person to make the affidavit; or
(b) specify by description or otherwise the persons from whom the party may choose the person to make the affidavit.
(3) Subject to Sub-rule (2) where the party is a person to whom Sub-rule (1)(c), (d) or (e) applies, the party shall, in relation to each interrogatory, choose a person to make the affidavit who is qualified under the relevant paragraph and has knowledge of the facts.
24. Insufficient answer. (24/8)
(1) Where a party fails to answer an interrogatory sufficiently, the Court may-
(a) if he has made an insufficient answer-order him to make a further answer verified by affidavit in accordance with Rule 23; or
(b) order him or any of the persons specified in Rule 23(b) to (d), as the nature of the case requires, to attend to be orally examined.
(2) Sub-rule (1) does not limit the powers of the Court under Rule 25.
25. Default. (24/9)
(1) Where a party makes default in compliance with an order under Rule 21 or 24 to file or serve a statement or affidavit, the Court may make such order as it thinks fit, including -
(a) if the party in default is a plaintiff-an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceedings; or
(b) if the proceedings were commenced by writ of summons and the party in default is a defendant-an order that his defence be struck out and that judgement be entered accordingly.
(2) Where a party has a solicitor -
(a) an order under Rule 21 or 24 need not, for the purposes of enforcement of the order by committal or sequestration, be served personally; but
(b) if the order has not been served personally, the order shall not be enforced by committal of any person or by sequestration of the property of any person if that person shows that he did not have notice or knowledge of the order within sufficient time for compliance with the order.
(3) Where a party has a solicitor, and an order under Rule 21 or 24 against the party is served on the party by leaving a copy of the order at the office of, or posting it to, the solicitor or his agent, the solicitor shall, if he fails without reasonable cause to notify the party of the order, be guilty of professional misconduct.
26. Answers as evidence. (24/10)
(1) A party may tender as evidence -
(a) one or more answers to interrogatories without tendering the others; or
(b) part of an answer to an interrogatory without tendering the whole of the answer.
(2) Where the whole or part of an answer to an interrogatory is tendered as evidence, the Court may -
(a) look at the whole of the answers; and
(b) if it appears to the Court that any other answer or any part of an answer is so connected with the matter tendered that the matter tendered ought not to be used without that other answer or part, the Court may reject the tender unless that other answer or part is also tendered.
27. Public interest. (24/11)
This Division does not affect any rule of law which authorizes or requires the withholding of any matter on the ground that its disclosure would be injurious to the public interest.
Division 3.-Admissions.
28. Voluntary admission. (18/1)
(1) A party to proceedings may, by notice served on another party, admit, in favour of the other party, but for the purpose of the proceedings only, the facts specified in the notice.
(2) A party may, with the leave of the Court, withdraw an admission under Sub-rule (1).
29. Notice to admit facts. (18/2)
(1) A party to proceedings may, by notice served on another party, require him to admit, for the purpose of the proceedings only, the facts specified in the notice.
(2) If, as to any fact specified in the notice, the party on whom the notice is served does not, within 14 days after service, serve, on the party serving the notice to admit facts, a notice disputing that fact, that fact shall, for the purpose of the proceedings, be admitted by the party on whom the notice to admit facts is served in favour of the party serving the notice.
(3) A party may, with the leave of the Court, withdraw an admission under Sub-rule (2).
30. Judgement on admissions. (18/3)
(1) Where admissions are made by a party, whether by his pleading or otherwise, the Court may, on the application of any other party, direct the entry of any judgement or make any order to which the applicant is entitled on the admissions.
(2) The Court may exercise its powers under Sub-rule (1) notwithstanding that other questions in the proceedings have not been determined.
31. Admission of documents discovered. (18/4)
(1) Where a list of documents is served on a party under Division 1 (discovery and inspection of documents), and inspection of any document specified in the list is permitted to that party under that Division, then, subject to Sub-rule (2), the following admissions by that party in favour of the party serving the list shall have effect unless the Court otherwise orders -
(a) that the document, if described in the list as an original document is an original document and was printed, written, signed or executed as it purports to have been; or
(b) that the document, if described in the list as a copy, is a true copy.
(2) Where a party -
(a) has by his pleading denied the authenticity of a document; or
(b) within 14 days after the time limited under Division 1 for inspection of a document, serves on the party giving inspection a notice that he disputes the authenticity of the document,
Sub-rule (1) does not work as an admission by the first-mentioned party as to that document.
(3) Where a party serves on another party a list of documents pursuant to Division 1, those parties shall be in the position that they would be in if the latter party had, on the date of service of the list, served on the party serving the list a notice requiring production at the trial of such of the documents specified in the list as are in possession, custody or power of the party serving the list.
(4) This Rule applies in relation to an affidavit made in compliance with an order under Division 1 Rule 7 (discovery of particular documents) as they apply in relation to a list of documents served under that Division.
32. Notice to admit documents. (18/5)
(1) A party to proceedings may, by notice served on another party, require him to admit, for the purpose of those proceedings only, the authenticity of the documents specified in the notice.
(2) If, as to any document specified in the notice, the party on whom the notice is served does not, within 14 days after service, serve, on the party serving the notice to admit documents, a notice disputing the authenticity of the document, the document shall, for the purpose of the proceedings, be admitted by the party on whom the notice to admit documents is served.
(3) A party may, with the leave of the Court, withdraw an admission under Sub-rule (2).
33. Restricted effect of admission. (18/6)
An admission under this Division for the purpose of any proceedings shall not be used -
(a) against the admitting party in any other proceedings; or
(b) in favour of any person other than the party in whose favour the admission is made.
34. Costs of notice where documents unnecessary.
If a notice to admit comprises documents which are not necessary, the costs occasioned thereby shall be borne by the party giving the notice.
35. Form of notice.
(1) A notice to admit facts (and authenticity of documents) shall be in Form 37.
(2) A notice disputing facts (and authenticity of documents) shall be in Form 38.
Division 4.-Medical Examination, Inspection of Property, etc.
Subdivision A.-Medical Examination.
36. Application and interpretation of Division 4. (25/11)
(1) Rules 36 to 43 apply to proceedings in which -
(a) the physical or mental condition of a person is relevant to any matter in question; and
(b) either -
(i) that person is a party; or
(ii) a party claims relief for the benefit of that person under Part IV of the Wrongs (Miscellaneous Provisions) Act 1962 (wrongful act or neglect causing death).
(2) In this Division -
first party means the party mentioned in Sub-rule (1)(b);
person concerned means the person mentioned in Sub-rule (1)(a).
37. Notice for examination. (25/2)
(1) Any party other than the first party may serve on the first party a notice in accordance with this Rule for the medical examination of the person concerned.
(2) A notice for medical examination shall be a request by the party giving the notice that the person concerned submit to examination by a specified doctor at a specified time and place, and shall be in Form 39.
38. Expenses. (25/3)
A party who serves a notice for medical examination shall, on request by the first party, pay to the first party a reasonable sum to meet the travelling and other expenses of the person concerned of and incidental to the medical examination including the expenses of having a doctor chosen by him attend his examination under Rule 41.
39. Non-compliance with notice. (25/4)
(1) Where a notice for medical examination of a person concerned is served under Rule 37, and a reasonable sum has been paid, if requested, in accordance with Rule 38, and the person concerned does not submit to examination in accordance with the notice, the Court may, on terms, stay the proceedings as to any claim for relief by or for the benefit of the person concerned, and order the refund of the sum to the party who paid it.
(2) Where, before the proceedings are set down for trial under Order 10 Division 1, a party files notice of a motion for a stay of proceedings under Sub-rule (1) the proceedings shall, unless the Court otherwise orders, be stayed pending disposal of the motion.
40. Order for examination. (25/5)
(1) The Court may, on terms, make orders for the medical examination of a person concerned, including an order that a person concerned submit to examination by a specified doctor at a specified time and place.
(2) Where the Court orders that a person concerned submit to examination by a doctor, the person concerned shall do all things reasonably requested and answer all questions reasonably asked of him by the doctor for the purposes of the examination.
41. Doctor for person concerned. (25/6)
The person concerned may have a doctor chosen by him attend his examination.
42. Report. (25/7)
(1) The examining doctor shall make a written report of his examination of the person concerned and shall give his report to the party serving the notice, or obtaining the order, for medical examination.
(2) A party to whom a report is given under Sub-rule (1) shall serve a copy of the report on the first party.
(3) Where the person concerned has had a doctor chosen by him attend his examination that doctor shall make a written report of the medical examination and shall give his report to the first party.
(4) The party to whom a report is given under Sub-rule (3) shall serve the report on the party serving the notice for medical examination or obtaining the order for medical examination.
43. Further medical examination.
Rules 36 to 42 are applicable to enable a second or further medical examination of the person concerned.
Subdivision B.-Inspection of Property, etc.
44. Inspection of property, etc. (25/8)
(1) The Court may, for the purpose of enabling the proper determination of any matter in question in any proceedings, make orders, on terms, for -
(a) the inspection of any property; or
(b) the taking of samples of any property; or
(c) the making of any observation of any property; or
(d) the trying of any experiment on or with any property; or
(e) the observation of any process.
(2) An order under Sub-rule (1) may authorize any person to enter any land or to do any other thing for the purpose of getting access to the property.
(3) A party applying for an order under this Rule shall, so far as practicable, serve notice of the motion on each person who would be affected by the order, if made.
(4) In this Rule, property includes any land and any document or other chattel, whether in the ownership, possession, custody or power of a party or not.
45. View. (25/9)
The Court may inspect any place, process or thing with respect to which any question arises in the proceedings.
Subdivision C.-Default.
46. Default. (25/10)
(1) Where a party makes default in compliance with an order under this Division or in compliance with Rule 40(2), the Court may make such order as it thinks fit, including -
(a) if the party in default is a plaintiff-an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed; or
(b) if the proceedings were commenced by writ of summons and the party in default is a defendant-an order that his defence be struck out and that judgement be entered accordingly.
(2) Where a person concerned, not being a party, makes default in compliance with an order under this Division, or in compliance with Rule 40(2), the Court may order that the proceedings be stayed or dismissed as to any relief claimed for the benefit of the person concerned.
(3) This Rule does not limit the powers of the Court to punish for contempt.