List of Documents (Form 36)

Part 7 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) deals with disclosure. When a registrar or the court orders a party to disclose documents relevant to the case, the party must lodge and serve an affidavit containing a list of the documents by the date ordered (r 30(2)). Form 36 is the list and Form 35, the Affidavit Verifying Disclosure of Documents, verifies it. The affidavit must say that every document required to be disclosed has been disclosed or is the subject of an objection (r 31(1)), and a party may object to producing a document that is privileged or inadmissible (r 32). The other party can then ask in writing to inspect the listed documents, which must be made available within 14 days (r 33). Separately, r 30A requires each party to give the others an informal list of documents at least 14 days before a pre-trial conference.

When you need it

• A registrar or the court has ordered you to disclose documents, often at a pre-trial conference (rr 30 and 40(2)(e)).
• You later find further documents covered by the order; you must lodge and serve a further affidavit and list as soon as practicable (r 30(3)).
• For a minor case claim the court has a separate Form 36A List of Documents, which refers to the Magistrates Court (Minor Cases Procedure) Rules 2005.

1. 1

   Complete the heading and select the party

   Enter the registry, case number and parties, and select the party whose documents are listed in each of the numbered paragraphs.

2. 2

   First schedule, Part I

   List the documents you have in your possession, custody or power and do not object to produce, in a convenient order, with a short description of each document or bundle sufficient to identify it. Bundles of the same kind, such as invoices, can be grouped.

3. 3

   First schedule, Part II and paragraph 2

   List the documents you object to produce and state the grounds in paragraph 2. The rules allow objection only where a document is privileged or inadmissible (r 32), and the grounds must also be stated in the verifying affidavit (r 31(2)).

4. 4

   Second schedule and paragraph 4

   List documents you once had but no longer have, and in paragraph 4 say when you last had them, what became of them and who has them now.

5. 5

   Notice to inspect

   This section must be completed by the lodging party: give the address where the Part I documents can be inspected and a date and time window, then date and sign it and address it to each other party.

6. 6

   Verify it with Form 35

   Swear or affirm a Form 35 affidavit before an authorised witness, identifying the list as the document shown to you. The affidavit must be made by the deponent personally (r 31(3)).

• Lodge and serve the affidavit and list by the date in the disclosure order (r 30(2)), through eLodgment on the eCourts Portal (r 98C).
• The Form 35 affidavit must be signed and lodged in PDF format, and the signed original kept (r 98E(5) and (6)).
• Serve sealed copies on each other party (r 100). A party wanting to inspect must serve a written request, and you must make the documents available within 14 days after service of the request and, if asked, provide copies at a reasonable cost or allow copying (r 33).
• Have every disclosed document available at the trial (r 34).

• Paragraph 5 is a sworn statement that no other relevant documents exist. Search properly before signing.
• Describe each document well enough for the other side to identify it: date, author, recipient and type.
• The court can refuse to admit a document a party deliberately did not disclose, and can order that party to pay costs (Act s 16(1)(q) and (s)).