List of documents (Rule 384(1)(a)) (Form 26)

Discovery in the Supreme Court of Tasmania is usually triggered by notice. After pleadings are closed, a party may by notice require another party to produce its discoverable documents for inspection and, if the notice says so, to make and serve a list of them (r 383(1)). Discoverable documents are those directly relevant to the issues on the pleadings that the party is aware of after a reasonable search and that are or have been in its possession, custody or power, including documents that help or hurt either side (r 382). Rule 384 requires the list to be in the prescribed form, enumerate documents in a convenient order, and describe each document or bundle enough to identify it. Form 26 is that list. Privilege must be claimed in the list with the grounds (r 384(2)).

When you need it

• Another party has served a notice under rule 383 requiring you to make and serve a list of documents.
• The Court has ordered you to make and serve a list (r 386(1)(a)).
• You need to record documents you once held but no longer have, and documents you object to producing.

1. 1

   Heading and opening statement

   Use the proceeding heading. Identify the party making the list and whether it is served under the Rules or under an order of a stated date.

2. 2

   First Schedule, Part I

   List documents you hold and do not object to producing, in a convenient order, with a short description of each. Similar documents, such as invoices, can be listed as bundles.

3. 3

   First Schedule, Part II and paragraph 2

   List documents you hold but object to producing, and state the ground of objection (for example, legal professional privilege) in paragraph 2.

4. 4

   Second Schedule and paragraph 4

   List documents you once held but no longer do, and say when each was last in your possession, what happened to it and who has it now.

5. 5

   Sign and complete the notice to inspect

   The party or its practitioner signs and dates the list. The notice to inspect states where, on what date and between what hours the Part I documents can be inspected, and who it is addressed to.

• Serve the list on the party who required it within 14 days after receiving the notice, or within any further time agreed or allowed (r 383(2)). The rules require it to be made and served, not filed.
• If the other party serves a notice requiring an affidavit verifying the list, make and file that affidavit (Form 27) within 14 days and serve a copy (r 383(8)-(10)).
• A defendant who has delivered a defence can obtain from the plaintiff copies of lists exchanged with other defendants (r 385).

• Paragraph 5 states that there are no other relevant documents. Make sure the search behind it was reasonable (r 382(3)).
• Describe privileged documents enough to identify them without revealing their privileged content.
• Discovery is a continuing obligation (r 382(1)), so documents that come to light later may also need to be disclosed.
• Some actions, such as motor vehicle collision cases, do not require the defendant to make discovery without an order (r 383(4)).