Proctor : December 2018
24 PROCTOR | December 2018 Applications for disclosure in the state courts This article explores applications brought by parties for disclosure under rule 223 Uniform Civil Procedure Rules 1999 (Qld) (UCPR) in circumstances whereby one party contends that another party has failed to comply with their duty of disclosure.1 Basis for the application Rule 223(1) UCPR provides that the court may order a party to a proceeding to disclose to another party a document or class of documents by delivery or production for inspection. Rule 223(4)(b)(i) provides that such an order may be made if it appears that there is an objective likelihood that the duty to disclose has not been complied with. Whether to bring the application If you or your client consider that another party (the intended respondent) has failed to comply with its duty of disclosure, this usually means that your client is a party to an existing case which has been commenced by claim and in which pleadings have been filed and served. 2 This typical case will be the basis for identifying the following steps which you should take. The starting point is to examine rule 211 UCPR which identifies the duty of disclosure in the typical case as being a duty to disclose a document: a. in the possession or under the control of the party, and b. directly relevant to an allegation in issue in the pleadings. The first step is to ask: what is the evidence which your client will adduce at the hearing of the application that the identified document or class of documents is in the possession or control of the respondent? As to possession, is there direct evidence that the respondent possesses the document or are there circumstances (such as legal obligations imposed on the respondent) from which the court can infer that the respondent has possession of the document? As to the issue of control, is there evidence that the document is not in the possession of the respondent but that the respondent can obtain it, such as directing a non-party to provide it with the document? The second step is to ask two questions: what is the allegation or fact in issue on the pleadings to which this document is said to be directly relevant? And will the document tend to prove or disprove the fact in issue? An allegation or fact in issue is a fact which is in dispute between the parties on the pleadings. For example, a statement of claims alleges a fact, and the defence denies that fact. That fact is an allegation in issue. Importantly, if a fact is admitted on the pleadings, there is no fact in issue to which a document is capable of being relevant. If the allegation in issue cannot be identified by you or if the document sought to be disclosed will not tend to prove or disprove the allegation in issue, then there appears to be no proper basis to bring an application. The third question is to ask: has the document in fact been disclosed? This will require a close examination of the list of documents delivered by the respondent and an inspection of those documents which may be the document alleged not to have been disclosed. Sometimes, a party describes a document in an unexpected way in their list. You will need to be certain that the document or class of documents which is to be the subject of any application has not been disclosed. The fourth question to ask is: is there any basis on which the respondent can argue that it has not breached its duty to disclose? For example, rule 212(1)(b) UCPR provides that the duty of disclosure does not apply to a document relevant only to credit. As another example, rule 221 UCPR provides that a party may disclose to another party a document relating only to damages only if the other party asks for its disclosure. If the document which you consider has not been disclosed relates only to damages, has your client asked for its disclosure? The fifth question to ask is: can I obtain this document in any other way which avoids the need for an application, such as a request under rule 222 UCPR? The final question to ask is: how important is this document to your client’s case? Remembering that there are consequences for non-disclosure provided in rule 225 UCPR (including that the party will need leave of the court to tender the document at trial), is it important to your client’s case that the other party be ordered to disclose the document? Why? Like an application for further and better particulars, an application for disclosure can cause the respondent to spend time considering the issues in the case and perhaps even improve their case, as well as being given an insight into what your side considers to be of importance in the case. Is the application for further disclosure worth that? If it is, and your client can jump all of the hurdles set out above, then an application may be appropriate. Letter to respondent Although a rule 444 letter is not required to be issued prior to bringing an application under rule 223 UCPR,3 the issue of a rule 444 letter or similar letter which identifies your client’s complaint about the proposed respondent’s non-compliance with its duty of disclosure may result in any number of events which mean that your client does not bring the proposed application.