Initial disclosure – co-existence with summary judgment

It is now clear that a plaintiff must comply with the duty to make “initial disclosure” (under High Court Rule 8.4) despite exhibiting documents to any affidavit in support of the plaintiff’s application for summary judgment.

The decision of Osborne AJ in Glaister v Harris [2014] NZHC 1285, 9/6/2014, confirms that an application for summary judgment does not exempt the plaintiff from making initial disclosure.

That decision was examined by the Rules Committee on 4 August 2014 (see https://www.courtsofnz.govt.nz/about/system/rules_committee/meetings/Minutes-4-August-2014-C-60-of-2014.pdf, and in particular C 60 of 2014, at paragraph 8), and held to correctly state the law, so there will not be any change made to the rule.

The result is that a plaintiff who omits initial disclosure is exposed to the risk of being the subject of “any order that the judge thinks just” under High Court Rule 7.48(1) or to any of the orders specified in High Court Rule 7.48(2) (which include strike out of any pleading).

There is no risk of doubling up materials before the Court, as any document relevant to the summary judgment application will be exhibited to the affidavit in support, and the remainder of the initial disclosure documents will be included in the bundle: High Court Rule 8.4(7).

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