Appeal from interlocutory decision to refuse discovery
Whether documents sought to be discovered are relevant
Quick Take
1Relevance for discovery under rr 29.01.1, 29.08 and 29.11 of the Supreme Court (General Civil Procedure) Rules 2025 is tested by reference to the issues raised on the pleadings. A 'party's case' in r 29.01.1 means the pleaded case. The credit of witnesses is not a pleaded issue, so documents sought only to impugn a witness's credit are not discoverable, whatever their forensic significance at trial.
2Refusing discovery gives rise to substantial injustice, as required for leave to appeal, only if it would materially compromise a party's ability to have a fair hearing. Documents of peripheral relevance at best, whose relevance depends on speculation about their content, do not meet that threshold.
3A party's entitlement to discovery is measured not only by the asserted relevance of the documents but also by whether the party pursued them diligently, consistently with the overarching purpose in ss 7 and 8 of the Civil Procedure Act 2010. On the facts, the applicants had made repeated unsuccessful prior applications, did not appeal an earlier refusal, showed no change of circumstances, delayed after the stay was lifted, and the trial was weeks away; together these supported refusing leave. The Court expressly left open whether the privilege against self-incrimination would have been available to resist production.
