Failure to Disclose in Civil Proceedings (Qld)
Disclosure is a fundamental part of any civil proceeding. The courts take parties’ obligations to make full and proper disclosure to other parties and to the court very seriously. Failure to disclose material that is required to be disclosed in civil proceedings can lead to serious consequences including the criminal charge of contempt of court. This article deals with the consequences of failure to disclose in civil proceedings in Queensland.
Disclosure by List of Documents and Copies of Documents
Under Rule 214(1) of the Uniform Civil Procedure Rules 1999, a party performs its duty of disclosure by sending to the other parties in a proceeding a list of the documents to which the duty relates and the documents in relation to which privilege from disclosure is claimed. Disclosure is also performed by sending to a party at the party’s request copies of the documents referred to in the list of documents, save for the documents in relation to which privilege from disclosure is claimed.
Rule 214(2) of the UCPR prescribes that the parties to the proceeding must disclose to each other party to the proceeding a list of documents, as follows:
- If an order for disclosure is made before the close of pleadings – the list of documents must be disclosed in accordance with that order;
- If an application for a summary decision is made within 28-days after the close of pleadings, and the proceeding is not entirely finalised when the application is decided – the list of documents must be disclosed no more than 28 days after the summary decision is made;
- If, as a result of a further pleading or amended pleading, further documents are subject to disclosure – the list of documents must be disclosed within 28-days after the further pleading or amended pleading is sent;
- If at a later date during the proceeding, a document comes into a party’s possession or under a party’s control – the list of documents must be disclosed within 7-days after this date;
- In any other circumstances not outlined above, the list of documents must be disclosed within 28-days after the close of pleadings.
Further, Rule 214(3) of the UCPR prescribes that if a party to a proceeding requests copies of the documents referred to in the list of documents from each other party, the documents must be disclosed to the party requesting the documents by not later than 14-days after the request.
If a party fails to properly perform disclosure by failing to satisfy the abovementioned deadline/s, that party will potentially be found to have failed to satisfy the requirements of disclosure, and could, in this circumstance, face serious consequences.
Consequences of Failure to Disclose
There are serious consequences if a party to a proceeding fails to disclose a document to each other party. Rule 225(1) of the UCPR prescribes that by failing to disclose, that party forfeits its right to tender the document as evidence, or to cite evidence of its contents at the proceeding unless that party is granted leave of the court. Further, that party could be found to be liable for the offence of contempt of court for not disclosing the document and could be ordered to pay the costs or a part of the costs of the other party to the proceeding.
Further, pursuant to Rule 225(2) and (3) of the UCPR, if a party to a proceeding fails to disclose a document to each other party, or otherwise fails to comply with the disclosure requirements, the other party can apply on notice to the court for an order staying or dismissing all or part of the proceeding; or for judgment or another order against the party that was required to disclose the document; or an order that the document be disclosed in the way stated in the order. Staying proceedings means suspension of the proceedings; proceedings are stayed until an order of the court is complied with. “Dismissing proceedings” means that the proceedings are terminated.
Other potential consequences of a failure to comply with disclosure obligations include:
- an adverse finding as to credit – that is, the court will be less likely to place as much weight on the evidence that supports the party’s case;
- the court could infer that the missing documents were adverse to the case of the party that failed to disclose them;
- dismissal of the party’s claim or defence; and
- in an extreme case, prosecution for contempt of court or for attempting to pervert the course of justice and/or destruction of evidence.
In some circumstances, a party to a proceeding could be required to swear an affidavit verifying that the list of documents that that party has disclosed is complete. In the event that a party is required to do this, any knowing failure to disclose a relevant document could amount to perjury; even an inadvertent failure to disclose a document could necessitate having to justify this failure under cross-examination at trial.
Legal Practitioners’ Obligation
Just as parties to a proceeding have disclosure obligations, legal practitioners have an obligation to advise the relevant party to the proceeding that they represent of that party’s disclosure obligations. Pursuant to Rule 226 of the UCPR, during or just prior to a trial, the legal practitioner must prepare and sign a certificate and provide the court with a certificate stating that the party has been advised fully in respect to the duty of disclosure, and if that party is a corporation, it must identify the individual of that corporation that that advice was provided to.
In summary, disclosure obligations must be complied with. A party to a proceeding must disclose all documents relevant to that proceeding. No documents can be withheld or destroyed. As outlined above, there may be several adverse consequences for failing to comply with disclosure obligations, whether that failure is inadvertent or deliberate.
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