Proctor : December 2018
25 PROCTOR | December 2018 For example, the other party may respond by making further disclosure or the other party may inform you that it does not have the document in its possession or control (and why that is the case). In the latter event, you may consider causing your client to issue a notice requiring non-party disclosure under rule 242 UCPR if it is able to identify a non-party which has possession of the document in question. Sending a letter prior to bringing the proposed application will, in any event, improve your client’s prospects of getting a costs order in its favour at the application. This is especially so if you identify the proposed evidence which your client will adduce at the hearing of the application to demonstrate that the duty of disclosure has not been met. Application and supporting affidavit The application should identify the rule under which the application is brought (being rule 223(4)(b)(i) UCPR in the typical case under consideration) and identify the document or class of documents in relation to which disclosure is sought. The relevant test for the court to consider at the hearing of the application is whether there appears to be an objective likelihood that the duty to disclose has not been complied with by the respondent. This is the test which your submissions and affidavit evidence should address. The supporting affidavit(s) should do the following (as a minimum): a. Contain admissible evidence which demonstrates that the document or class of documents is in the possession or control of the respondent. This cannot be speculation or subjective opinion evidence by your client as to their beliefs as to what the respondent has in its possession or control. It can be direct evidence of facts that the document or class of documents is in the possession or control of the respondent, such as evidence of a former employee that he saw such documents kept as part of the records of the respondent. Alternatively, or in addition, it can be evidence of facts from which the court can be asked to infer that the respondent has such documents. For example, if the respondent has a statutory or other legal obligation to maintain certain records and to keep them for a certain period of time, the court may infer that the respondent has such documents in its possession or control. b. Contain evidence which demonstrates that the document or class of documents has not been disclosed by the respondent (such as exhibiting the lists of documents provided by the respondent). c. Exhibit correspondence between the parties about the alleged non-disclosure. Basis for opposition to order One basis upon which an application for disclosure may be opposed is that the document or class of documents is not in the possession or control of the respondent. As a general proposition, if that is the only basis on which the application is opposed and the respondent adduces cogent evidence at the hearing of the application to that effect, then the application is likely to be dismissed unless your side is able to demonstrate a basis upon which that evidence should not be accepted. If such affidavit evidence is served by the respondent prior to the hearing of the application, then you might consider amending the application to seek an order under rule 223(2)(b) UCPR that the respondent file and serve an affidavit stating the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of the respondent. Such an affidavit may assist your client to identify a non-party for the purposes of obtaining non-party disclosure. Another basis upon which an application for disclosure may be opposed is that the document or class of documents is not directly relevant to an allegation in issue in the pleadings. Usually, such a contest is a matter for submissions, not evidence. If that is the basis for the opposition, and you know this prior to the application being filed, you may consider applying in the alternative for disclosure on the basis that there are special circumstances and the interests of justice require the disclosure of the document pursuant to rule 223(4)(a) UCPR. Such an application will turn on its own facts, which facts will need to be the subject of evidence contained in the supporting affidavits. However, if the document is of critical importance to your client such that you consider that the test in rule 223(4)(a) UCPR can be satisfied, then it may provide an appropriate alternative basis to bring the application. A third basis upon which an application for disclosure may be opposed is that there is another rule which excludes the duty of disclosure in relation to particular documents, such as rule 212 UCPR. Again, as a general proposition, if that is the only basis on which the application is opposed and the respondent adduces cogent evidence at the hearing of the application to that effect, then the application is likely to be dismissed unless your side is able to demonstrate a basis upon which that evidence should not be accepted. Back to basics by Kylie Downes QC Kylie Downes QC is a Brisbane barrister and member of the Proctor Editorial Committee. Notes 1 In the usual case, a party makes disclosure by delivery of a list under rule 214 UCPR. 2 See rule 209(1)(a) UCPR. 3 BTU Group v Noble Promotions Pty Ltd  QCA 505 at .