What is your duty of disclosure?

In a litigious matter, once all the parties in the proceedings have filed their pleadings (documents such as a Statement of Claim, Defence and Reply), pleadings are said to have ‘closed’.  Once pleadings have closed, parties to legal proceedings in State based courts are usually obliged to provide disclosure.  Note that this article does not discuss the disclosure obligations in the Federal Court where the obligations regarding disclosure are different.  To many, this process may seem daunting and confusing, so in this article we consider the key elements of disclosure in Queensland under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

Time for disclosure

Rule 214(2) of the UCPR provides that disclosure is required within 28 days after the close of pleadings (unless further pleadings or amended pleadings are filed).

Following rule 214(2), after the final pleading is filed in the matter (generally this will be a Reply), then the parties have 28 days in which to provide the other parties with their disclosure.  For example, if a Reply was filed on 1 January, if no further pleadings are filed in the matter, disclosure is due by 29 January.

What is required to be disclosed?

Rule 211 provides that a party to a proceeding has a duty to disclose to each other party any document:

• in the possession or under the control of the party;
• directly relevant to an allegation in issue to the proceedings; and
• if there are no pleadings – directly relevant to a matter in issue in the proceedings.

A document is defined in schedule 1 of the Acts Interpretation Act 1954 (Qld) to include:

• any paper or other material on which there is writing;
• any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and
• any disc, tape or other article or any material from which sounds, images, writing or messages are capable of being produced or reproduced (with or without the aid of another article or device).

When is a document under a party’s possession or control?

A party will be required to disclose documents under its possession or control.  The key to this provision is noting that parties will be required to disclose documents if they are in their possession or their control, but it is not necessary that they both possess and control the document simultaneously.

A party will be in possession of a document if the party has the physical possession or the right to possess the document.  Examples of this may be:

• a party maintains the document on a computer in their house (physical possession);
• a party maintains a signed copy of a document (physical possession); or
• a party maintains documents in a safe deposit box (right to possess).

A party will be in control of a document if the party has the power to exercise discretion over the document or the ability to access or request the document remotely.  Examples of this may be:

• a party can download a bank statement from their bank by request; or
• a party can require a third party (who maintains possession of the document) to do an act in relation to that document.

When is a document “directly relevant” to an allegation in issue to the proceedings?

A document will be directly relevant if the document relates to allegation in issue.  There has been much judicial consideration of when documents are “directly relevant”, and therefore discoverable, over one hundred (100) years.  The current position in Queensland is that a document will be directly relevant if it tends to prove or disprove an allegation in issue (this position was set out in Robson v Reb Engineering Pty Ltd [1996] QSC 232 and has been accepted by numerous cases since).

Following this test, it is apparent that the documents that will need to be disclosed are documents that are relevant to any of the allegations in issue in the proceedings.  In order to ascertain the allegations in issue, the party will need to be aware of the pleadings filed in the matter which set out the allegations relied upon by the parties.

Where a document which is subject to disclosure contains information that is both directly relevant to, and not relevant, to an allegation in issue in a proceeding, the general principle is that the whole of the document should be disclosed.

Documents that do not need to be disclosed

Rule 212 provides that the following documents do not need to be disclosed:

• a document that is privileged;
• a document only relevant to credit; or
• an additional copy of a document already disclosed; if it is reasonable to suppose the additional copy contains no change, obliteration or other mark or feature likely to affect the outcome of the proceeding.

Requirements for disclosure

Rule 214(1)(a) provides that disclosure may be performed by providing each other party in the proceedings with a list of documents (List of Documents) setting out the documents the disclosing party believes are discoverable.  The List of Documents must also set out any documents the disclosing party is claiming that it is not required to disclose on the basis that the documents are privileged.  Whether a document is privileged can be a complex question, generally requiring legal advice.

The List of Documents is required to be in a Form 19.

Once the parties provide each other with their List of Documents, the parties must make available (or deliver to the other party), at the other party’s request, copies of the documents mentioned in the List of Documents, other than the documents to which legal privilege from disclosure is claimed.

Documents requested must be delivered within 14 days of that request.

Continuing obligation to disclose

The obligations for disclosure do not cease after the parties have prepared their List of Documents.  Rule 211(2) provides that the parties are under a continuing obligation of disclosure until the matter is decided.  This means that should a party find themselves in possession or control of a document that is directly relevant to an allegation in the proceedings, they are required to disclosure that document to the other parties.

Takeaways

Disclosure is an important, but burdensome, procedure in the litigation process.  It is important for parties to be aware of their rights and obligations when providing disclosure in a litigious matter.  If a party is unsure of their obligations, their rights or the method of providing discovery, consulting a lawyer as soon as possible is very important.

Links and further references

Cases

Robson v Reb Engineering Pty Ltd [1996] QSC 232

Legislation

Acts Interpretation Act 1954 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Further information about litigation and disputes

If you need assistance regarding a litigious matter that you are involved in, or any potential litigation, please telephone me for an obligation free and confidential discussion.

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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