Duty to Disclose in Civil Proceedings (Qld)
Where a party is involved in civil proceedings and the requirements of disclosure are triggered, then these requirements must be satisfied. If a party is represented in a proceeding, that party’s legal representatives have an obligation to advise them of their disclosure obligations under Part 1, Chapter 7 of the Uniform Civil Procedure Rules 1999 (UCPR). This article deals with the duty to disclose in civil proceedings in Queensland.
What is disclosure?
After the pleadings have closed in a civil matter, the parties are required to complete disclosure. This means that parties must disclose and inspect each other’s documentary material that is relevant to the proceeding.
Duty to disclose
Under Rule 211(1) of the UCPR, a party to a proceeding has a duty to disclose documents to each other party to the proceeding. This includes documents that are in that party’s possession and/or under the control of that party, and which are directly relevant to an allegation in issue in the pleadings, or if there are no pleadings, which are directly relevant to a matter in issue in the proceeding.
Here, “pleadings” refer to documents such as a Claim, Statement of Claim, Notice of Intention to Defend, Defence and Reply. Accordingly, if the proceeding is started by a Claim and Statement of Claim, then the parties have a duty to disclose all documents which are directly relevant to an allegation in issue in the Statement of Claim.
A “document” is not defined narrowly. Schedule 1 of the Acts Interpretation Act 1954 prescribes that a “document” includes any paper or other material on which there is writing, or on which there are marks, figures, or symbols, and any tape or other article or any material from which sounds, images or writings can be produced – with or without the aid of another article and/or another device.
A “document” is said to be in a party’s possession or under a party’s control if that party:
- has actual physical possession of it;
- can exercise direction over it – that is, it is not in that party’s possession, but that party still has power and/or control over it; or
- if possible, can acquire it from a government or other authority.
A document will be found to be directly relevant to an allegation in issue in the case in which it tends to prove or disprove an allegation in issue.
The question as to whether a document proves or disproves a fact or issue in a proceeding is not relevant. If a document disproves a fact that a party has alleged, if it is in that party’s possession or under that party’s control and is directly relevant to an allegation in issue, it must be disclosed despite the fact that this could be unconstructive for that party’s case.
Further, entire copies of documents should be disclosed. In some cases, irrelevant material in a document can be redacted, meaning that it can be deleted by striking it out. However, it must be disclosed to the other party, so it is apparent to the other party that the material that has been redacted and/or struck out is in fact irrelevant.
Under Rule 211(2) of the UCPR, the duty of disclosure continues until the proceeding is decided by the court. This means that if new evidence comes into a party’s possession or under a party’s control at a later stage during the proceeding, this evidence must be disclosed to each other party to the proceeding. In this event, a supplementary list of documents will likely need to be prepared.
When is an allegation in issue?
Under Rule 211(3) of the UCPR, an allegation is in issue until it is admitted, withdrawn or otherwise struck out. If a party files a defence and admits to an allegation set out in the Statement of Claim, as this allegation has been admitted, this allegation is no longer in issue, meaning that any disclosure as to this allegation will not be required.
A party will be found to have properly performed disclosure by giving to the other party a list of documents, or at the other party’s request, by giving to the other party, copies of the documents referred to in the list of documents.
Documents to which the Duty to Disclose does not apply
Rule 212(1) of the UCPR prescribes that the duty of disclosure does not apply to:
- documents in relation to which there is a valid claim to privilege from disclosure, such as:
- all correspondence and copies of correspondence passing between a party and that party’s legal practitioner;
- all communications passing between a party and that party’s legal practitioner, such as all file notes made by either that party or that party’s legal practitioner during the course of, or in contemplation of, a proceeding, with an intention to, or for the dominant purpose of, legal advice as to it, or evidence to be used in it, or which could lead to the acquisition of such evidence, or for the use of either of that party or that party’s legal practitioner in relation thereto, or in relation to confidential communications;
- all communications passing between a party and that party’s legal practitioner and third parties during the course of, in contemplation of, a proceeding;
- all statements and draft statements made by a party and that party’s legal practitioner; and
- all communications which are against the public interest, and/or which would tend to expose a party to criminal and/or civil penalty;
- documents in relation to credit only; and
- copies of documents already disclosed to the other party to the proceeding, which contain no alteration, obliteration, or other marks likely to affect the outcome of that proceeding.
The above-mentioned documents must still be disclosed in the list of documents; however, they are not required to be sent to the other party to the proceeding and/or made ready for inspection by the other party, unless the court orders otherwise.
Despite the above, however, Rule 213 of the UCPR stipulates that the other party to the proceeding, (ie the party not claiming privilege from the disclosure of a document) can challenge the party’s claim to privilege by requiring that party to file and serve on them an affidavit stating the basis of the claim within 7 days of the challenge. It is not necessary that the affidavit be made by the party challenging the other party’s claim to privilege; however, the affidavit must be made by an individual that is privy to the facts and circumstances relevant to the claim.
If a party is represented in a proceeding, that party’s legal practitioner will determine if there is a valid claim for privilege from disclosure in relation to a document. As such, if a party is represented in a proceeding, typically, all that legal practitioner will require from that party is any documents that are in that party’s possession or under that party’s control relevant to the proceeding.
Failure to disclose
If a party fails to disclose material that is required to be disclosed, it may face consequences including the forfeiture of the right to tender the document as evidence and possible criminal charges for contempt of court.
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