County Court (Chapter I Amendment No. 2) Rules 2010

i County Court (Chapter I Amendment No. 2) Rules 2010 S.R. No. 145/2010 TABLE OF PROVISIONS Rule Page PART 1—PRELIMINARY 1 1 Object 1 2 Authorising provisions 1 3 Commencement 1 4 Principal Rules 1 PART 2—CERTIFICATION REQUIREMENTS UNDER THE CIVIL PROCEDURE ACT 2010 2 5 Order 4 divided into Parts 2 6 New Parts 2 and 3 of Order 4 2 PART 2—CERTIFICATION REQUIREMENTS ON COMMENCEMENT OF PROCEEDINGS 2 4.09 Overarching obligations certification 2 4.10 Proper basis certification 2 4.11 Pre-litigation requirements compliance certification 2 4.12 Making of certification 2 7 New Forms 4A to 4C 3 Form 4A—Overarching Obligations Certification 3 Form 4B—Proper Basis Certification 3 Form 4C—Pre-litigation Requirements Compliance Certification 4 PART 3—DISCOVERY 5 8 New Rule 29.01.1 5 29.01.1 Scope of discovery 5 9 Notice for discovery 6 10 Affidavit of documents 6 11 New Rules 29.05.1 and 29.05.2 7 29.05.1 Order for general discovery 7 29.05.2 Order for expanded discovery 7 -- 1 of 12 -- Rule Page ii 12 New Rule 29.16 7 29.16 Transitional provision—County Court (Chapter I Amendment No. 2) Rules 2010 7 13 Form 29B—affidavit of documents 7 ═══════════════ ENDNOTES 10 -- 2 of 12 -- 1 STATUTORY RULES 2010 S.R. No. 145/2010 County Court Act 1958 Civil Procedure Act 2010 County Court (Chapter I Amendment No. 2) Rules 2010 A majority of the Judges of the County Court makes the following Rules: PART 1—PRELIMINARY 1 Object The object of these Rules is to amend Chapter I of the Rules of the County Court— (a) to provide for forms of certification required under the Civil Procedure Act 2010; (b) in relation to discovery of documents. 2 Authorising provisions These Rules are made under section 78 of the County Court Act 1958, section 70 of the Civil Procedure Act 2010 and all other enabling powers. 3 Commencement These Rules come into operation on 1 January 2011. 4 Principal Rules In these Rules, the County Court Civil Procedure Rules 2008 1 are called the Principal Rules. __________________ -- 3 of 12 -- Part 2—Certification Requirements Under the Civil Procedure Act 2010 County Court (Chapter I Amendment No. 2) Rules 2010 S.R. No. 145/2010 2 PART 2—CERTIFICATION REQUIREMENTS UNDER THE CIVIL PROCEDURE ACT 2010 5 Order 4 divided into Parts Before Rule 4.01 of the Principal Rules insert the following heading— "PART 1—GENERAL". 6 New Parts 2 and 3 of Order 4 After Rule 4.08 of the Principal Rules insert— "PART 2—CERTIFICATION REQUIREMENTS ON COMMENCEMENT OF PROCEEDINGS 4.09 Overarching obligations certification For the purposes of section 41(2) of the Civil Procedure Act 2010 the overarching obligations certification shall be in Form 4A. 4.10 Proper basis certification For the purposes of section 42(2) of the Civil Procedure Act 2010 the proper basis certification shall be in Form 4B. 4.11 Pre-litigation requirements compliance certification For the purposes of section 43(3) of the Civil Procedure Act 2010 the pre-litigation requirements compliance certification shall be in Form 4C. 4.12 Making of certification A certification required by Part 4.1 of Chapter 4 of the Civil Procedure Act 2010 is to be bound into or attached to the relevant document to which the certification relates.". r. 5 -- 4 of 12 -- Part 2—Certification Requirements Under the Civil Procedure Act 2010 County Court (Chapter I Amendment No. 2) Rules 2010 S.R. No. 145/2010 3 7 New Forms 4A to 4C Before Form 5A of the Principal Rules insert— "Rule 4.09 FORM 4A OVERARCHING OBLIGATIONS CERTIFICATION [heading as in originating process] In accordance with section 41 of the Civil Procedure Act 2010, I [name of party] certify to the Court that I have read and understood the overarching obligations set out in sections 16 to 26 of that Act and the paramount duty set out in section 16 of the Act. Date: Signed [To be signed personally by party or if party is represented by a litigation guardian or similar representative, by that litigation guardian or representative] __________________ Rule 4.10 FORM 4B PROPER BASIS CERTIFICATION [heading as in originating process] In accordance with section 42 of the Civil Procedure Act 2010, I [name of legal practitioner or if not legally represented, name of party] certify to the Court that, in relation to the document [identify document to which certification relates] filed on behalf of [specify party], on the factual and legal material available to me at present: (a) each allegation of fact in the document has a proper basis; *(b) each denial in the document has a proper basis; r. 7 -- 5 of 12 -- Part 2—Certification Requirements Under the Civil Procedure Act 2010 County Court (Chapter I Amendment No. 2) Rules 2010 S.R. No. 145/2010 4 *(c) there is a proper basis for each non-admission in the document. Date: Signed *Delete if not applicable __________________ Rule 4.11 FORM 4C PRE-LITIGATION REQUIREMENTS COMPLIANCE CERTIFICATION [heading as in originating process] In accordance with section 43 of the Civil Procedure Act 2010, I [name of party or party's legal practitioner] certify to the Court that: *I have/*[Name of party] has complied with the pre-litigation requirements set out in section 34 of that Act. OR *I have/*[Name of party] has not undertaken the pre-litigation requirements set out in section 34 of that Act for the following reasons: [specify briefly reasons for not undertaking pre-litigation requirements]. Date: Signed *Delete if not applicable Note See section 32 of the Civil Procedure Act 2010 for the types of proceedings or disputes for which this certification is not required. __________________". __________________ r. 7 -- 6 of 12 -- Part 3—Discovery County Court (Chapter I Amendment No. 2) Rules 2010 S.R. No. 145/2010 5 PART 3—DISCOVERY 8 New Rule 29.01.1 After Rule 29.01 of the Principal Rules insert— "29.01.1 Scope of discovery (1) Unless the Court otherwise orders, discovery of documents pursuant to this Order is limited to the documents referred to in paragraph (3). (2) Paragraph (1) applies despite any other rule of law to the contrary. (3) Without limiting Rules 29.05 and 29.07, for the purposes of this Order, the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given— (a) documents on which the party relies; (b) documents that adversely affect the party's own case; (c) documents that adversely affect another party's case; (d) documents that support another party's case. (4) Notwithstanding paragraph (3)— (a) if a party giving discovery reasonably believes that a document is already in the possession of the party to which discovery is given, the party giving discovery is not required to discover that document; r. 8 -- 7 of 12 -- Part 3—Discovery County Court (Chapter I Amendment No. 2) Rules 2010 S.R. No. 145/2010 6 (b) a party required to give discovery who has, or has had in his, her or its possession more than one copy, however made, of a particular document is not required to give discovery of additional copies by reason only of the fact that the original or any other copy is discoverable. (5) For the purposes of paragraph (3), in making a reasonable search a party may take into account— (a) the nature and complexity of the proceeding; (b) the number of documents involved; (c) the ease and cost of retrieving a document; (d) the significance of any document to be found; and (e) any other relevant matter.". 9 Notice for discovery In Rule 29.02(1) of the Principal Rules for "relating to any question raised by the pleadings" substitute "and which, in accordance with Rule 29.01.1, are required to be discovered". 10 Affidavit of documents At the end of Rule 29.04 of the Principal Rules insert— "(2) If a party required to give discovery in accordance with Rule 29.01.1 does not, in making a reasonable search as required by Rule 29.01.1, search for a category or class of document, the party must include in the affidavit of documents a statement of— r. 9 -- 8 of 12 -- Part 3—Discovery County Court (Chapter I Amendment No. 2) Rules 2010 S.R. No. 145/2010 7 (a) the category or class of document not searched for; and (b) the reason why.". 11 New Rules 29.05.1 and 29.05.2 After Rule 29.05 of the Principal Rules insert— "29.05.1 Order for general discovery At any stage of a proceeding, the Court may order any party to give discovery in accordance with Rule 29.01.1. 29.05.2 Order for expanded discovery (1) At any stage of a proceeding, the Court may, by order, expand a party's obligation to give discovery beyond that required by Rule 29.01.1. (2) Without limiting any power of the Court, an order under paragraph (1) may specify any document or class of document to which the expanded obligation relates.". 12 New Rule 29.16 After Rule 29.15 of the Principal Rules insert— "29.16 Transitional provision—County Court (Chapter I Amendment No. 2) Rules 2010 The amendments made to this Order by the County Court (Chapter I Amendment No. 2) Rules 2010 apply to any proceeding commenced on or after 1 January 2011.". 13 Form 29B—affidavit of documents (1) In Form 29B of the Principal Rules— (a) in clause 1 for "relating to the questions in this proceeding enumerated in Schedule 1" substitute "enumerated in Schedule 1 which are required to be discovered"; r. 11 -- 9 of 12 -- Part 3—Discovery County Court (Chapter I Amendment No. 2) Rules 2010 S.R. No. 145/2010 8 (b) in clause 3 for "document relating to the questions in the proceeding enumerated in Schedule 2" substitute "documents enumerated in Schedule 2 which are required to be discovered"; (c) in clause 5 for "relating to any question in the proceeding" substitute "required to be discovered". (2) In Form 29B of the Principal Rules, after clause 5 insert— "*6. In making a reasonable search as required by Rule 29.01.1 of Chapter I of the Rules of the County Court, I did not search for the following category or class of document [specify which category or class of document for which no search was made]. *7. The reason why I did not make a search for the category or class of documents referred to in clause 6 is [specify reason].". (3) In Form 29B of the Principal Rules at the end of the Form insert— "*Delete if not applicable.". Dated: 23 November 2010 M. ROZENES, Chief Judge I. E. LAWSON M. G. McINERNEY E. M. GAYNOR F. J. SHELTON P. J. COISH G. R. ANDERSON J. A. CAMPTON P. D. JENKINS W. A. WILMOTH J. R. BOWMAN G. T. CHETTLE R. A. LEWITAN J. G. MORRISH J. A. SMALLWOOD D. A. PARSONS M. E. SEXTON L. A. HANNAN F. E. HOGAN M. D. MURPHY r. 13 -- 10 of 12 -- Part 3—Discovery County Court (Chapter I Amendment No. 2) Rules 2010 S.R. No. 145/2010 9 C. M. O'NEILL F. SACCARDO P. G. MISSO G. P. MULLALY K. L. BOURKE T. J. GINNANE P. M. E. WISCHUSEN J. L. PARRISH P. G. LACAVA M. H. TINNEY F. R. GUCCIARDO G. T. CANNON P. M. TAFT ═══════════════ r. 13 -- 11 of 12 -- County Court (Chapter I Amendment No. 2) Rules 2010 S.R. No. 145/2010 10 ENDNOTES 1 Rule 4: S.R. No. 148/2008 as amended by S.R. Nos 182/2009, 184/2009 and 185/2009. Endnotes -- 12 of 12 --