Disclosure

When you commence a general proceeding or file your statement of defence, you must provide the other parties a bundle of documents called “initial disclosure”. Disclosure refers to the process where a party provides the other parties with copies of relevant documents about their case. This includes providing the other parties with documents you are aware of that might hurt your case or help another party. High Court Rule 8.4 (external link)sets out in detail what documents you need to disclose by way of initial disclosure, and you should check this Rule carefully.

Along with the documents you are disclosing, you will need to serve an affidavit of initial disclosure, which confirms the accuracy and completeness of the documents you are providing.

What documents do I need to disclose? 

To meet your initial disclosure obligations, you must disclose:

  • documents referred to in your statement of claim or statement of defence, and 
  • any other principal documents used to prepare your statement of claim or statement of defence, and
  • any other principal documents that you know at that time that you are going to rely on to support your case, and
  • any adverse documents.   

See High Court Rule 8.4(1), (1A), (1B)(external link)

What is an affidavit of initial disclosure?

An affidavit of initial disclosure is a sworn statement that confirms the completeness and accuracy of the documents you are disclosing (providing) to the other party at the start of the proceeding.

The affidavit must:

  • be prepared in the required format (Form G37 (external link)is recommended), and
  • list all the documents that you are disclosing that support your case, and
  • list any adverse documents, and
  • confirm your understanding of the disclosure obligations, and
  • briefly describe the steps taken to check for adverse documents, and
  • identify any documents for which privilege or confidentiality is claimed, and
  • list any documents you know about but do not control.                                        

The affidavit of initial disclosure must be attached to the documents you are disclosing. 

See High Court Rule 8.15(external link)

For more information on affidavits, see Evidence- statements of fact made to the court

What is an adverse document?

An adverse document is one that:

  • contains information that is unfavourable to your case, or
  • supports another party’s case, and
  • you either know exists or have good reason to believe exists.

All parties are required to take reasonable steps to check for the existence of such documents. 

See High Court Rule 8.4(1A).(external link)

When does the affidavit and disclosure documents need to be served?

The affidavit and documents you are disclosing must be served on the other party at the same time as your first pleading (e.g. statement of claim or defence). This requirement applies to all parties in a general proceeding, unless the court directs otherwise. 

See High Court Rule 8.4(1)(external link)

Glossary is available here

 
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