August 26, 2024
For parties involved in Queensland civil litigation, one of the most important stages is disclosure (also referred to as ‘discovery’). It is an interlocutory procedure where, broadly speaking, documents that are relevant to the issues in dispute in the proceeding are delivered or exchanged between parties. The Uniform Civil Procedure Rules 1999 (Qld) (UCPR) defines disclosure as “the delivery or production of documents…”[1]
The purpose of disclosure is to ensure that all relevant documents are made available to the parties, as well as to the Court, to prevent surprise at trial. This is underpinned by the notion that courts can only fairly and justly deal with a case if all relevant materials are preserved and disclosed.
The first article of this series will provide an overview of the duty of disclosure, when the duty arises, documents that must be disclosed, and consequences for not complying with disclosure procedures.
DUTY OF DISCLOSURE
Under rule 211(1) of the UCPR, a party to a proceeding has a duty to disclose documents to each other party to the proceeding.
When does the duty to disclose arise?
Once parties have filed and served their pleadings (court documents which define the issues to be determined by the Court), the duty of disclosure arises. Here, ‘pleadings’ refer to the statement of claim, defence and counterclaim, and reply and answer. The plaintiff’s filing of a ‘reply’ typically represents the close of pleadings, but this may vary in some cases.
Generally, disclosure must take place within 28 days after the close of pleadings, in which parties are required to deliver the documents in their possession to one another.[2] This is usually effected by delivering a ‘List of Documents’ to the other party, which contains all relevant material that the party intends to rely upon in the proceedings. Where the defence is the final pleading in the matter, disclosure must take place 14 days after filing.[3]
Parties may also request copies of the documents mentioned in the list of documents (other than those that are privileged).[4] Copies must be provided to the requesting party within 14 days. Further, where a party does not provide a copy of any of the documents referred to in their pleadings, the other party may request such document by serving a rule 222 notice, which requires providing those documents for inspection or permit copies of the document to be made.
Under rule 211(2) of the UCPR, the duty of disclosure continues throughout the entire duration of the court proceeding. This means that new evidence coming into a party’s possession or under a party’s control at a later stage during the proceeding must still be disclosed. Therefore, a party may also have a supplementary list of documents, a further supplementary list of documents, etc.
WHAT DOCUMENTS MUST BE DISCLOSED?
Rule 211(1) of the UCPR provides that a party to a proceeding has a duty to disclose to each other party each document –
(a) in the possession or under the control of the first party; and
(b) directly relevant to an allegation in issue in the pleadings; and
(c) if there are no pleadings – directly relevant to a matter in issue in the proceeding.
‘Document’
Broadly speaking, a ‘document’ will cover any record of information.[5] This includes anything on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them, and an electronic document. Maps, plans, drawings or photographs, as well as discs, tapes or other articles which sounds, images, writings or messages are capable of being produced or reproduced would also be included within the meaning of ‘document’.
‘Directly Relevant’ and ‘Allegation in Issue’
A document will be found to be ‘directly relevant’ to an ‘allegation in issue’ if it tends to prove or disprove an allegation in issue,[6] i.e., if a document disproves a fact alleged by a party, which is in that party’s possession or under that party’s control, and is directly relevant to an allegation in issue, then it must be disclosed despite being unconstructive for that party’s case. An allegation remains in issue until it is admitted, withdrawn, struck out or otherwise disposed of.[7]
‘Possession’ and ‘Control’
A document in a party’s ‘possession’ has been defined as “the physical or corporeal holding of the document pursuant to a legal right to its possession”.[8] This will extend to documents, for example, on a party’s computer. ‘Control’ means the power to exercise discretion over the document (but does not necessarily have to be exclusive control).
CONSEQUENCES FOR NON-COMPLIANCE
Under r 225(1) of the UCPR, if a party does not disclose a document that required disclosing, the party –
(1) must not tender the document, or adduce evidence of its contents at trial without the court’s leave; and
(2) is liable to contempt for not disclosing the document; and
(3) may be ordered to pay the costs or a part of the costs of the proceeding.
Accordingly, the other party may apply on notice to the court under r 225(2) for –
(a) an order staying or dismissing all or part of the proceeding; or
(b) a judgment or other order against the party required to disclose the document; or
(c) an order that the document be disclosed in the way and within the time stated in the order.
Therefore, parties should act with great prudence during the disclosure process to avoid the consequences set out under r 225.
Stay tuned for part 2 of this series, which will explore documents to which the duty to disclose does not apply.
Lamont Project & Construction Lawyers
The Lamont Project & Construction Lawyers team has extensive knowledge and experience dealing with the disclosure process. 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 210 (‘UCPR’).
[2] UCPR r 214.
[3] UCPR r 169.
[4] UCPR r 214(1)(b).
[5] Acts Interpretation Act 1954 (QLD) schedule 1.
[6] Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102, 105.
[7] UCPR r 211(3).
[8] Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 2) [2006] FCA 1001, [53].