September 9, 2024
In Parts 1 and 2 of this series, we broadly explored the disclosure process, standard rules of disclosure and documents that will not fall within the ordinary duty to disclose by way of their ‘privileged’ nature. To conclude this series, we will examine the newly enacted ‘preliminary disclosure’ provision in the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) as well as ‘non-party disclosure’.
PRELIMINARY DISCLOSURE
Historically in Queensland, pre-action disclosure obligations have been unenforceable until proceedings are issued. As of 10 December 2021, however, the Queensland Government amended the UCPR to include a ‘preliminary disclosure’ provision (rules 208A – 208G). These amendments only apply to the Supreme Court of Queensland (SCQ) and do not extend to District or Magistrate courts.
Preliminary Disclosure to Ascertain the Identity of a Defendant
Under rule 208C of the UCPR, a party can apply to the Court to seek certain orders for preliminary disclosure where it is unsure of the identity or whereabouts of a prospective defendant prior to the commencement of substantive proceedings. ‘Whereabouts’ is defined as “… place of residence, registered office, place of business or other location of the prospective defendant”[1] and ‘identity’ “… includes the name and the occupation, if any, of the prospective defendant”.[2]
An applicant must demonstrate to the Court that:
(a) an applicant may have a right to relief against a prospective defendant; and
(b) the applicant has made reasonable inquiries, but is unable to sufficiently ascertain the identity or whereabouts of the prospective defendant; and
(c) another person may have information, or possession or control of a document or thing, that may assist in ascertaining the identity or whereabouts of the prospective defendant.[3]
Preliminary Disclosure to Determine Whether to Start a Proceeding
Pursuant to rule 208D of the UCPR, the Court may make orders for disclosure of a document relevant to a decision to commence proceedings against a prospective defendant. However, the Court must be satisfied that:
(a) an applicant may have a right to relief against a prospective defendant; and
(b) it is impracticable for the applicant to start a proceeding against the prospective defendant without reference to a document; and
(c) there is an objective likelihood that the prospective defendant has, or is likely to have, possession or control of the document; and
(d) inspection of the document would assist the applicant to make the decision to start the proceeding; and
(e) the interests of justice require the order to be made.[4]
Procedural Considerations Under Rules 208C and 208D
An application for an order for disclosure to the Court must be supported by the facts on which the applicant relies, as well as the information, document or thing in respect of which the order is sought.[5] A copy of the application and supporting affidavit must be served personally on the prospective defendant.[6] Practically, such an application is to be commenced by an originating application.
Further, an order for preliminary disclosure may be subject to a condition that the applicant give security for costs and expenses of the person against whom the order is to be made.[7]
Preliminary Disclosure in Action?
Given the nascency of these rules, it is only a matter of time before they are the subject of judicial consideration by the SCQ. Although Queensland authorities offer limited guidance on how the rules will operate, New South Wales courts have considered the comparative Uniform Civil Procedure Rules 2005 (NSW) which may assist with understanding how their Queensland counterparts will operate under the UCPR:
(1) the relevant test to be applied is the ‘appears to the court’ test, which is wide in scope;[8]
(2) an application for preliminary discovery does not involve a determination of the merits of the claim, but rather, whether it appears to the court that a cause of action may exist (although a mere assertion of the claim is insufficient);[9]
(3) preliminary disclosure only extends to information that is ‘reasonably necessary’;[10] and
(4) the question is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective defendant, but whether they have sufficient information to decide whether to start a proceeding.
Further, preliminary disclosure cannot be used to ‘build’ up a case which an applicant has already decided or could decide to bring against the prospective defendant.[11] This means that a prospective application for preliminary disclosure must be filed before any other proceedings are commenced.
NON-PARTY DISCLOSURE
Under rule 242(1) of the UCPR, a party (applicant) to a proceeding may by notice of non-party disclosure require a person who is not party to the proceeding (respondent) to produce to them, within 14 days after service of the notice on the respondent, a document –
(a) directly relevant to an allegation in issue in the proceeding; and
(b) in the possession or under the control of the respondent; and
(c) that is a document the respondent could be required to produce at the trial of the matter.
The relevant form is Form 21, which must be served in the same way as a claim.[12] The non-party served with a notice of non-party disclosure has seven days from when they are served to serve a written objection to producing the documents listed.[13] Under rule 245(4), a notice can be objected to on the following grounds:
(a) if the objector is the respondent – the expense and inconvenience likely to be incurred by the respondent in complying with the notice;
(b) the lack of relevance to the proceeding of the documents mentioned in the notice;
(c) the lack of particularity with which the documents are described;
(d) a claim of privilege;
(e) the confidential nature of the documents or their contents;
(f) the effect disclosure would have on any person; or
(g) if the objector was not served with the notice – the fact that the objector should have been served.
Once an objection is served, the notice is ‘stayed’.[14] The applicant then has seven days to apply to the court for a decision regarding the notice.[15]
Lamont Project & Construction Lawyers
The Lamont Project & Construction Lawyers team has extensive knowledge and experience with all forms of disclosure. With this knowledge and expertise, Lamont Project & Construction Lawyers can provide the required support and advice for disclosure in litigation of all scopes and sizes.
If you would like to discuss any matters raised in this article as it relates to your specific circumstances, please contact Lamont Project & Construction Lawyers.
The content of this article is for information purposes only and does not discuss every important topic or matter of law, and it is not to be relied upon as legal advice. Specialist advice should be sought regarding your specific circumstances.
Contact: Peter Lamont or Cliff Mei
Email: [email protected] or [email protected]
Phone: (07) 3248 8500
Address: Level 2, 349 Coronation Drive, Milton Qld 4064
Postal Address: PO Box 1133, Milton Qld 4064
[1] Uniform Civil Procedure Rules 1999 (Qld) r 208B (‘UCPR’).
[2] Ibid r 208B.
[3] UCPR r 208C(1).
[4] UCPR r 208D(1).
[5] UCPR r 208C(4)(a), r 208D(4)(a).
[6] UCPR r 208C(4)(b), r 208D(4)(b).
[7] UCPR r 208E.
[8] O’Connor v O’Connor [2018] NSWCA 214, [90].
[9] Morton v Nylex Ltd [2007] NSWSC 562, [25] (‘Morton’).
[10] Glencore International AG v Selwyn Mines Ltd (2005) FCA 801.
[11] Morton, [33].
[12] UCPR r 243(1)(e).
[13] UCPR r 245(1).
[14] UCPR r 246.
[15] UCPR r 247.