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The Power of Disclosure: Part 3 – Performing Disclosure

June 19, 2023

The final instalment of this series explores important considerations surrounding when disclosure occurs, how it is performed, and the consequences of failing to comply with disclosure obligations properly. Given the importance of disclosure during litigation, and the potential consequences of a failure to act in accordance with the relevant requirements, all parties should ensure they have a comprehensive understanding of their obligations.

How to perform disclosure

In the early stages of a proceeding, litigants should begin to think about how disclosure will be performed, including the scope of documents that will be disclosed, how they will be retrieved, and what format they should be in.

Parties may elect to perform disclosure electronically.  This means that documents can be emailed to the other side, or hosted on an online platform which streamlines access for all involved, especially when there is a large volume of material involved.

Importantly, while undertaking these processes, parties should remember that documents could be in various formats such as word and excel documents, emails, PDF’s, as well as text messages.  For a comprehensive breakdown of what parties may be required to disclose, please refer to Part 1 of this series which explores the topic in more detail.

Third Party Material 

Where a document or material is in the possession of a third party, an application may be made to the court requesting that third party be compelled to produce the relevant material. Where the court agrees with a party’s request, it may issue a subpoena, requiring a third party to produce certain materials, or give evidence in connection with the given matter.

Parties should keep these matters in mind when preparing for disclosure, to ensure that any potential court applications can be dealt with in a timely manner with other potential preliminary issues.

Record Keeping

Compiling all relevant material during the disclosure process can be a challenging and time-consuming task given the potential breadth of issues that may be in dispute between the parties and the potential scope of relevant documents.

Parties can take proactive steps to mitigate the potential issues associated with the disclosure process by ensure that they keep have effective record keeping processes in place. Doing so ensures that documents can be easily accessed and compiled if such steps become necessary. Effective record keeping processes often include:

  1. scanning hard copies of documents and storing them into relevant electronic systems;
  2. keeping electronic archives so any historic material is easily recoverable;
  3. using clear and efficient filing systems;
  4. filing documents in a timely manner as required; and
  5. have document registers where material relates to specific activities or items, to allow for easy identification.

Preparing a list of documents

Once all the material subject to disclosure obligations have been compiled, it will be necessary for the preparation of a list of documents, which is then shared with the other side. The list of documents needs to include sufficient information to properly identify the relevant document, including a brief description, who created the document, and the date it was created. When preparing a list of documents, it may be helpful to categorise the material under appropriate subheadings to assist with readability and document identification. Importantly, the list of documents should also identify all material which privilege is claimed in connection to, as to ensure such rights are properly protected.

Once both parties have prepared their list of documents, they will be required to exchange such. Where a party require a copy of any document listed on the other party’s list of documents, they can make a request for a copy of that document to be provided.  If a party requests the delivery of any documents, the other party must deliver a copy of the requested documents within 14 days of the request was made.

Disclosure obligations may also be complied with by allowing the other party to inspect documents, including in circumstances where:

  1. a request has been made to produce a specified original document; or
  2. it is not convenient to deliver the list of documents because of the number, size, quantity, or volume of the documents or material to be disclosed.

Disclosure by production for inspection

Pursuant to rule 216 of the UCPR, if a party performs disclosure by producing documents for inspection, the party producing the documents must notify the opposite party, in writing, of a convenient place and time which the documents will be inspected.

As a general rule, documents should be arranged in logical order so they are easily accessible and can be retrieved readily.  The party producing the documents must also provide, if necessary, mechanical and computing facilities for the inspection and copying of the documents.

If, however, a party does not inspect the documents under a notice, the documents may not be made available for inspection again, unless that party tenders’ reasonable costs for another opportunity for inspection or by an order from the court.

When to perform disclosure

Generally, disclosure must be performed within 28 days from when the pleadings close.

Pleadings close 14 days after the service of the defence, or if any pleading is served after the defence, then on service of that pleading.

However, there are circumstances where the above will not apply, and a list of documents must be delivered at some other time, including:

  1. any time before the close of pleadings if disclosure is ordered by the court;
  2. within 28 days after a summary decision by the court if the proceeding is not entirely finalised; or
  3. within 28 days after any further pleading or amended pleading is delivered.

Disclosure is an ongoing obligation

The duty of disclosure continues throughout the proceeding.  Rule 214(2)(d) of the UCPR provides disclosure must be performed within 7 days each time a new document comes into the possession or control of a party after initial disclosure obligations have already been complied with.

Failure to perform disclosure

A party who fails to disclose forfeits its right to tender the document as evidence or rely on the contents of the evidence at the trial, unless the party is granted leave of the court.

Furthermore, if a party fails to disclose documents, it may face serious consequences, including criminal charges for contempt of court or orders to pay the other sides costs of the proceeding.

If a party does not comply with disclosure obligations, the other side can apply to the court, and orders may be made in accordance with rules 223 and 224 of the UCPR, which include:

  1. an order staying or dismissing all or part of the proceeding;
  2. a judgement or other order against the defaulting party; or
  3. an order that certain documents be disclose.

Hence, it is important that parties are aware of all of their disclosure obligations, given the serious consequences associated with a failure to comply with such.

LPC Lawyers

LPC Lawyers have industry knowledge and experience to assist with litigation processes such as disclosure and can advise you throughout the process.

If you would like to discuss any matters raised in the above article or this series as it relates to your specific circumstances, please contact Lamont Project & Construction Lawyers.

The contents of this article is for information purposes only; it 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 Kimi Pace

Email[email protected] or [email protected]

Phone: (07) 3248 8500

Address: Suite 1, Level 1, 349 Coronation Drive, Milton Qld 4064

Postal Address: PO Box 1133, Milton Qld 4064