Disclosure – practice and procedure

When do I use this factsheet?

Once the pleadings (i.e. Statement of Claim, Defence (and Counterclaim), Reply (and Answer)) have been completed, or when the court orders, the parties must disclose the documents they intend to rely on.

Disclosure is outlined in Chapter 7, Part 1 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR)

What is disclosure?

Disclosure is the delivery or production of documents by a party to a case to the other parties in the case (rule 210).

Disclosure is intended to prevent surprise at the trial, inform the parties of the issues to be disputed at the trial, and to assist the parties to resolve disputes of fact.

There are three main steps in the disclosure process:

Serving a list of documents on the other party;
Offering inspection of your disclosed documents to the other party; and/or
Providing copies of your disclosed documents to the other party.

Who has to disclose?

In proceedings started by Claim, all parties to the court proceeding must perform disclosure (rule 209(1)(a)).

In proceedings started by Originating Application, disclosure only take place if the court orders it (rule 209(1)(c)).

When must disclosure take place?

Generally disclosure must take place within 28 days of the close of pleadings (rule 214(2)(c)).

The close of pleadings occurs:

When a pleading (usually a Reply) is served after a Defence or an answer to Counterclaim.
If the Defence is the final pleading in the matter, 14 days after the Defence is filed (rule 169).

The duty of disclosure continues throughout the entire court proceeding. Each time a relevant document comes into your possession or under your control, you need to disclose this to the other party within seven days (rule 214(2)(e)).

As a result you may have a list of documents, a supplementary list of documents, a further supplementary list of documents, etc.

In other cases disclosure must take place:

any time before the close of pleadings if disclosure is ordered by the court (rule 214(2)(a));
within 28 days after a summary decision by the court if the proceeding is not entirely finalised (rule 214(2)(b));.and
when any further pleading or amended pleading is delivered (rule 214(2)(d)).

You must deliver a copy of a document requested in writing by another party within 28 days of the request (rule 214(2)(f)).

What do I have to disclose?

You must disclose all documents:

in your possession or under your control; and
that are directly relevant to an allegation in issue in the pleadings (rule 211).

Documents are not just paper with writing on them. A document includes:

any paper or other material on which there is writing;
any paper or other material on which there are marks, figures, symbols or perforations; and
any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (section 36 Acts Interpretation Act 1954).

A document is in your possession or under your control if:

you possess it, that is you actually physically have the document;
the document is in your possession but not owned by you;
you are able to exercise direction over it (e.g. documents held by someone else on your behalf); and/or
in some cases, you are able to access the document from a government department.

If you only hold a copy of a document you should disclose the copy.

A document is directly relevant to an issue in the proceeding if it tends to prove or disprove an allegation in the pleadings.

The following documents must be disclosed if the other party asks for them:

documents relating only to damages (rule 221); and
documents mentioned in the pleadings, particulars or in affidavits (rule 222).

What about disclosing groups or classes of documents?

A group or class of documents includes several documents that are of the same type and can be disclosed as a group rather than as individual documents (e.g., Annual Reports from 2000 to 2010, correspondence between plaintiff’s solicitors and defendant’s solicitors from 1 November 2006.

Are there documents I don’t have to disclose?

You don’t have to disclose:

privileged documents;
documents relevant only to credit or credibility of a party; or
additional copies of documents 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 court proceeding (rule 212).

A document is privileged if it falls within one of these grounds:

legal professional privilege: Communications to obtain confidential legal advice and documents prepared for use in existing or anticipated litigation such as correspondence between a party * to the court proceeding and their solicitor and/or barrister;
without prejudice communications: Express or implied admissions or offers made during settlement negotiations that fail to produce a settlement;
self-incrimination: Documents that would disclose self-incriminatory material (not for companies or incorporated associations);
forfeitures and penalties: Evidence in support of a forfeiture or a penalty against you;
oppression: When a request for a massive amount of information outweighs the benefits to be derived from it; and
public interest: Information collected in the course of public duties or public administration.

Privileged documents do not include:

expert reports; and
a document consisting of a statement of an expert.

A party can challenge the other party’s claim of privilege by requiring the other party to file and serve an affidavit stating the basis of the claim within 7 days (rule 213).

What about documents with both relevant and irrelevant material?

As a general rule you should disclose entire copies of documents. Sometimes sensitive but irrelevant information contained within a document can be “redacted” (that is the sensitive information is removed by ruling a thick line through it). However it must be apparent to the other parties and the court that the material that has been redacted is irrelevant.

How do I perform disclosure?

Disclosure is performed by:

giving to the other party a list of documents under rule 211; or
giving to the other party copies of the documents in the list of documents (other than the privileged documents) when the other party requests copies (rule 214).

However, disclosure may also be performed by an inspection of the documents that need to be disclosed if:

it is not convenient for a party to deliver a list of documents and copies of documents because of the number, size, quantity or volume of the documents (rule 216); or
a party requests another party to produce for inspection specific original documents from the party’s list of documents (rules 215 and 216).

Do I have to pay for disclosure?

When the parties to an action have lawyers, the lawyers will often agree that each party will pay the photocopying expenses of the other party.

Under the UCPR, it is the responsibility of the party disclosing a document to:

provide a copy of that document to the other party; or
make the original document available for inspection, and to provide facilities for the making of a copy of those documents

without charge to the other party.

What happens if disclosure does not take place?

If you do not disclose a document, you:

must not tender the document, or adduce evidence of its contents, at the trial without the permission (leave) of the court;
may be liable to contempt for not disclosing the document; and
may be ordered to pay the costs or a part of the costs of the court proceeding (rule 225).

If the other party does not disclose a document, you may apply to the court for:

an order staying or dismissing all or part of the court proceeding;
judgment or another order against the party required to disclose the document; or
an order that the document be disclosed in the way and within the time stated in the order (rule 225).

If the court is satisfied that:

there are special circumstances and the interests of justice require it; or
there is an objective likelihood that a party has not complied with the duty of disclosure or a document or group of documents exists or existed and has passed out of the possession or control of a party (rule 223),

the court may order a party to:

deliver to the other party a copy of a document or group of documents; or
produce the document or group of documents for inspection by the other party; or
file and serve on another party an affidavit stating that a specified document or group of documents does not exist or has never existed or the circumstances in which a specified document or group of documents ceased to exist or passed out of the possession or control of the party.

In other cases, the court may order a party to:

deliver, produce or inspect a document or group of documents;
not deliver, produce or inspect a document or group of documents;
defer the delivery, production or inspection of documents (rule 223); or
be relieved of the duty of disclosure (rule 224).

Do disclosed documents need to be produced at trial?

Disclosed documents must be produced at the trial if:

notice to produce the documents has been given; and
the party is asked to produce the documents at the trial (rule 227(1)).

If you tender a disclosed document at trial, the other party is entitled to rely on that document (rule 227(2)).

What if someone else has the documents?

The UCPR allows you to obtain documents from someone who is not a party to the proceedings through “non party disclosure.”

If you can get these documents in some other way, e.g. if the documents belong to you, you should not use the non party disclosure process (rule 243(1)(c)).

You need to (1) identify the allegations in the pleadings that the documents you want relate to, and (2) identify what documents you want to obtain.

You then need to complete a notice of non party disclosure, Form 21. You can find this form on the Court’s website.

You will be called the applicant. The non-party you are seeking documents from is called the respondent.

You should then file the original and at least two copies of the form in the registry.

Rules 243 and 244 require you to serve a sealed copy of the Form 21 notice on the following within three months of the date of issue:

any person, except for a party, that the notice seeks information about (rule 244(1)(a));
the owner of the document (if the respondent is not the owner of the document (rule 244(1)(b)); and
the respondent. You should serve the respondent after you have served the other persons required to be served (rule 243(2)).

The notice must be served in the same way as a claim (rule 243(1)(e)). It should be either personally served or in the case of a company served by posting it to the registered office of the company (section 109X Corporations Act 2001).

The respondent or another person served with a notice of non-party disclosure has seven days from when they are served to serve a written objection to producing the documents listed (rule 245(1)). Another person affected by the notices who wants to object needs the leave of the court to do so (rule 245(2)).

A notice can be objected to on the following grounds:

the expense and inconvenience to the respondent of complying with the request (if the respondent is objecting) (rule 245(4)(a));
lack of relevance (rule 245(4)(b));
that the documents are not sufficiently particularised (i.e. identified) (rule 245(4)(c));
privilege (rule 245(4)(d));
confidentiality (rule 245(4)(e));
the effect disclosure would have on another person (rule 245(4)(f)); and/or
if the objector was not served with the notice (and was required to be served), the failure to serve the notice (rule 245(4)(g)).

If an objection is served, the notice is stayed (rule 246). The applicant then has seven days in which to apply to the court for a decision about the notice (rule 247).

Can disclosure take place electronically?

In cases where there are more than 500 documents to disclose the courts encourage the parties to conduct disclosure electronically. Practice Direction 8 of 2004 Electronic Management of Documents deals with preparing a document protocol.