Default discovery: Queensland vs Federal position

In the Supreme Court of Queensland (Supreme Court), the right to an exchange of documents is the default position in proceedings started by claim, while in the Federal Court of Australia (Federal Court) there is no entitlement to exchange of documents, and a party must persuade the Court that this exchange is necessary, proportionate and targeted.  This exchange of documents is commonly referred to as discovery.

The Queensland position

Rule 211(1) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) states:

“(1) 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.”

[Bold is our emphasis]

This requires each party to a proceeding started by a claim to disclose to every other party each document in its possession or under its control that is “directly relevant to an allegation in issue in the pleading“.  The obligation arises automatically.

Unless the Court orders otherwise, disclosure is usually given by delivering a list of documents within twenty-eight (28) days after the close of pleadings, with copies of the listed non-privileged documents provided on request.^[1]  The duty continues until the proceeding is decided,^[2] and documents that come into a party’s possession or control later must generally be disclosed within seven (7) days.^[3]  Failing to do so will mean the party cannot tender it as evidence and potentially face cost orders, liability for contempt, or dismissal of the case.^[4]

In proceedings started by application, rule 209(1)(c) of the UCPR contemplates that disclosure occurs only where the Court directs it.  The Court will then generally make a suitably tailored order rather than require disclosure under the rules.

What is “directly relevant”?

A document is directly relevant if it tends to prove or disprove an allegation in issue.^[5]  The Queensland Court of Appeal held in Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276 that it is not enough that a document might lead to a train of inquiry capable of advancing one party’s case or damaging another’s.^[6]  An allegation stays in issue until it is admitted, withdrawn, struck out or otherwise resolved.^[7]

The duty is not confined to helpful documents.  A directly relevant document must be disclosed even where it damages the disclosing party’s own case.^[8]

Exclusions and limits

A party does not need to disclose documents subject to a valid claim of privilege, documents relevant only to credit, documents relating only to damages (unless specifically requested), or additional copies of documents already disclosed that are unlikely to affect the outcome.^[9]  In Queensland, a statement or report of an expert is not privileged and therefore must be disclosed.^[10]  The Court may also relieve a party wholly or partly from the duty where the cost and burden of compliance are not justified by the importance of the documents or the amount in dispute.^[11]

The Federal position

Rule 20.11 of the Federal Court Rules 2011 (Cth) (FCR) states:

“A party must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible.“

This means that discovery may be given only where the Court has ordered it, so no party is entitled to its opponent’s documents as of right.  The Federal Court has confirmed that it is “not automatic or even ordered as a matter of course“, and that any order made will be shaped to the circumstances of the case.^[12]

If discovery is necessary, a party must state either that it seeks standard discovery or the scope of the discovery it proposes if seeking a non-standard disclosure.^[13]

This approach reflects the overarching purpose in sections 37M and 37N of the Federal Court of Australia Act 1976 (Cth), under which civil practice and procedure is directed to resolving disputes justly and with the least cost and delay, and parties and their lawyers are under a statutory duty to co-operate in achieving that purpose.^[14]

Standard vs non-standard discovery

Standard discovery extends to documents directly relevant to the issues on the pleadings or affidavits that the party locates after a reasonable search and that are, or were, within its control.^[15]  A document is directly relevant for this purpose only if the party intends to rely on it, or it adversely affects that party’s own case, or it supports or adversely affects another party’s case.^[16]

Non-standard discovery involves a party seeking more extensive discovery must file an affidavit explaining why the order should be made.^[17]  Once discovery has been ordered, the obligation to give it is continuing.^[18]

Takeaway

The Queensland and Federal jurisdictions take fundamentally different approaches to discovery.  In the Supreme Court of Queensland, disclosure of directly relevant documents forms part of the ordinary progression of proceedings under the UCPR.  By contrast, in the Federal Court, discovery is not available as of right and will generally only be ordered where the Court is satisfied that it is necessary, proportionate and appropriately targeted.  This distinction has significant practical consequences.  It affects when documents must be identified, collected and reviewed, the scope and timing of document production, and the extent to which litigation costs are incurred in the early stages of a dispute.

Links and further references

Legislation

Federal Court of Australia Act 1976 (Cth).

Federal Court Rules 2011 (Cth).

Uniform Civil Procedure Rules 1999 (Qld).

Cases

Adelaide Brighton Cement Ltd, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (subject to deed of company arrangement) (No 3) [2018] FCA 1058.

Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd [2011] QSC 183.

Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276.

Taylor v Saloniklis [2013] FCA 679.

Further information

If you need advice on default discovery rights, contact us for a confidential and obligation‑free discussion.

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[1] Rule 214, Uniform Civil Procedure Rules 1999 (Qld)

[2] Rule 211(2), Uniform Civil Procedure Rules 1999 (Qld)

[3] Rule 214, Uniform Civil Procedure Rules 1999 (Qld) .

[4] Rule 225, Uniform Civil Procedure Rules 1999 (Qld)

[5] Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd [2011] QSC 183, [16]-[17] (Applegarth J) citingMercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276, [7].

[6] Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276, [7] (Pincus JA).

[7] Rule 211(3), Uniform Civil Procedure Rules 1999 (Qld) .

[8] Rule 211(1), Uniform Civil Procedure Rules 1999 (Qld)

[9] Rules 212(1) and 221, Uniform Civil Procedure Rules 1999 (Qld)

[10] Rule 212(2), Uniform Civil Procedure Rules 1999 (Qld)

[11] Rule 221, Uniform Civil Procedure Rules 1999 (Qld)

[12] Taylor v Saloniklis [2013] FCA 679, [7] (Besanko J).

[13] Rule 20.13(2), Federal Court Rules 2011 (Cth)

[14] Sections 37M and 37N, Federal Court of Australia Act 1976 (Cth)

[15] Rule 20.14(1), Federal Court Rules 2011 (Cth)

[16] Rule 20.14(2), Federal Court Rules 2011 (Cth)

[17] Rule 20.15, Federal Court Rules 2011 (Cth)

[18] Rule 20.20, Federal Court Rules 2011 (Cth)

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