5. Disclosure and Discovery

Question 1

Purpose of disclosure/discovery QLD?

Answer 1

Facilitates purpose of r5 by avoiding trial by ambush/surprise by assisting parties to investigate the factual background of the dispute.

Question 2

When duty arises QLD?

Answer 2

1. Automatically applies to all proceedings started by claim (or treated as if started by claim): r209 UCPR.
2. Also, to proceedings started by application, if crt directs: r209 UCPR

Question 3

When discovery duty arises FCT?

Answer 3

1. No discovery without court order: r20.12 FCR.
2. Party may apply to the crt for an order that another party give standard or non-standard discovery: **r20.13 FCR **
3. No right to discovery: Murex Diagnostics Australia

Question 4

Scope of disclosure duty QLD?

Answer 4

1. Parties MUST disclose to each other each document in their possession or control which is directly relevant to an allegation in issue in the pleadings (or, if there are no pleadings, directly relevant to a matter in issue in the proceeding): r211
2. Exclusions: Privileged documents, documents relevant only to credit (unless credit is relevant to allegation in issue, eg defamation), or additional copies of documents already disclosed (if no significant differences): r212 UCPR
   * An expert statement or report is no privileged: r212(2) UCPR
3. Implied undertaking: documents provided through discovery not to be used for any purpose other than the conduct of the proceedings: Harman
4. Party may disclose to another party a document relating only to damages only if the other party asks for its disclosure: **r221 **UCPR

Question 5

Scope of discovery duty FCT?

Answer 5

1. Standard discovery: party must give discovery of documents that are directly relevant to an issue raised by the pleadings of which the party (after reasonable search) is aware, and that are (or have been) in the party’s control: r20.14 (1) FCR:

• ‘directly relevant’ means docs party intends to rely upon; or adversely affect own case; or support another party case; or adversely affect another party case: r20.14(2)
• ‘reasonable search’ can take into account complexity of proceedings; docs involved; ease/cost of retrieving; significance of doc; and any other matter: r20.14(3)

2. Non-standard discovery: party seeking non-standard discovery MUST provide information required by r20.15 FCR (e.g. parts of r20.14 criteria that are not to apply; discovery categories); and an affidavit stating why order should be made:
3. Exclusions: Privileged documents (r20.02), documents re credit unlikely to satisfy ‘direct relevance to issue raised’ in r20.14(1)(a) (unless eg defamation); or additional copies of documents already disclosed (if no significant differences)( r20.18).
4. Implied undertaking: applies until document read or referred to in open crt in a manner which discloses its contents. After this, party may apply for continued restriction of use: r20.03.
5. Order to obtain documents from third party: under s23 FCA the Crt has power to order a party to take such steps as are reasonably necessary to obtain documents from a third party and to make them available for inspection.

Question 6

Failure to comply disclosure QLD?

Answer 6

1. Non-disclosing party MUST NOT tender document or adduce evidence of its contents at trial without leave, is liable for contempt for not disclosing the document, and may be ordered to pay costs: r225(1) UCPR.
2. Other party may apply on notice to the Crt for an order staying or dismissing all or part of the proceeding, a judgment or other order against the party required to disclose the document, or an order that the document be disclosed: r225 (2) UCPR

Question 7

Failure to comply with orders for discovery FCT?

Answer 7

If fail to comply with crt order requiring discovery, other party may apply for orders on default under r5.23 FCR (includes stay or dismissal of proceedings).

Question 7

Timing of disclosure/discovery?

Answer 7

QLD:
1. Date in the order: r214 UCPR; or

2. Within 28 days after close of pleadings, or if comes into possession after that time, within 7 days of coming into possession: r214 UCPR.
3. Documents requested to be provided within 14 days of request: r214 UCPR
4. Enduring obligation, duty continues until proceedings end: r211 UCPR.
5. Staged disclosure can defer disclosure by notice until asked by party seeking deferral at a reasonable time having regard to the stage in the proceedings. Can only disclose if asked by party: r220 UCPR.

FCT:
1. Cannot apply for discovery until 14 days after Defence/affidavit in response served: r20.13(3) FCR.

2. Enduring obligation: once discovery ordered party under a continuing obligation to discover docs necessary to comply with order of discovery:** r 20.20 FCR**

Question 8

How performed QLD?

Answer 8

1. **Provision of list **of documents and delivery of copies of any documents on request: r214
2. Party may require production of original documents for inspection (eg, in fraud cases): r215 UCPR
3. Disclosure by inspection (r216)/production (r217) of documents if not convenient to deliver due to number/size.
4. If pty doesn’t make use of inspection under r216, may not inspect unless tenders amount of reasonable costs: r219 UCPR
5. Inspection of documents referred to in pleadings/affidavits: r222 UCPR.
6. Solicitor having conduct of the proceedings must sign and produce solicitor’s certificate at trial stating the duty of disclosure has been explained fully to the party and, if the party is a corporation, the identity of the person to whom the duty was explained: r226 UCPR.
7. Production of disclosed documents at trial: r227 UCPR = if notice to produce is given and their production is asked for at trial.

Question 8

How discover performed FCT?

Answer 8

1. Serving (NOT filing) of list of documents in accordance with the requirements of r20.17: r20.16 FCR, must be verified by affidavit sworn in accordane with r20.22 FCR.
2. MUST identify if searches were not made for any category of documents and state reason: r20.16 FCR
3. Need not provide copies just because original/other copies discoverable: r20.18 FCR
4. May serve notice to produce for inspection any document mentioned in a pleading or affidavit: 20.31 FCR: other party to reply with notice of inspection or that not in their control.
5. Party may apply for order for production of documents in list of documents for inspection: r20.32 FCR

• Production for inspection and actual inspection are distinct from, and occur after, the giving of discovery.

Question 9

Claiming privilege QLD?

Answer 9

1. Need not disclose privileged documents: r212
2. **Expert report is not privileged **from disclosure: r212(2) UCPR.
3. Privilege includes:
   * Legal professional privilege;
   * Against self-incrimination;
   * Public interest privilege;
   * Parliamentary privilege; and
   * Without prejudice privilege.
4. Privilege can be waived, but must be intentional – if inadvertent should be allowed to correct error: Expense Reduction
5. If privilege claim is challenged, party claiming privilege must file and serve affidavit stating ground for claim within 7 days after challenge. Affidavit must be made by person who knows facts giving rise to the claim: **r213** UCPR
6. Where confidentiality issue arises, orders can be made that only external legal advisers receive the documents, or provision subject to express undertakings: Mobile Oil

Question 10

Claiming privilege on disclosure/discovery FCT?

Answer 10

1. Order made under Part 20 does not require person to produce any document that is privileged: r20.02 FCR
2. May exclude document on the ground that its disclosure would injure public interest: r20.01 FCR.
3. Where confidentiality issue arise, crt may make orders that only external legal advisers recieve the documents: Power Infrastructure.
4. Party cannot claim privilege on the ground that document does not tend to undermine own case/support the other party’s case: r20.19 FCR

Question 11

Court supervision, discovery QLD?

Answer 11

1. Court may order a party to be relieved of the duty in whole or in pt: r224 UCPR.
2. Court may order that delivery, production or inspection of a document or class of documents be provided, not provided, or deferred:** r223 **UCPR (discretionary power)
3. In some cases (e.g. where non-compliance suspected), crt may: make orders for production/inspection of specific documents, or order **party to file and serve affidavit stating that document or class of documents does not exist/has passed out of possession **or control of party: r 223
4. If objection made to application for disclosure under this rule, crt may inspect document to decide the objection: r223 UCPR

Question 12

Court supervision in discovery FCT?

Answer 12

1. All aspects supervised by crt, as no discovery without crt order: r20.12 FCR
2. Crt may order party to file and serve affidavit confirming current or previous control of document: r20.21 FCR
3. Party can apply to the Crt for an order that another party produce to the Crt a doc in the party’s control relating to an issue in the proceeding, and the Crt can inspect the doc to decide the validity of an objection to production, including a claim that the document is privileged from production: r 20.35 FCR

Question 13

Non-party discolsure QLD?

Answer 13

1. Non-party disclosure: rr242-249 UCPR.
2. A pty may by notice of non-party disclosure require a person who is not a party to produce (within 14 days) a document that is directly relevant to allegation in issue, is in the possession or under their control and is a doc they **could be required to produce at trial, but not **if there is another reasonably simple and inexpensive way of proving the matter; and there is no ongoing duty to disclose: r242 UCPR.
3. Form and service of the notice: r243 UCPR
4. Failure to comply with r243(2) by not serving persons affected by a notice of non-party disclosure prior to service on the respondent **is an irregularity **within r371(1).
5. Unless stayed (by objection under r245), and subject to any order under r247, must produce the document specified in the notice for inspection: r248; applicant must pay the respondent’s reasonable costs and expenses of producing document: r249 UCPR
6. Party (or another person affected by the notice) has 7 days to object, or otherwise with leave: **r245 **
7. An objection will stay the notice: r246 UCPR

Question 13

Non-party disclosure FCT?

Answer 13

1. May apply for non-party discovery: r20.23 FCR
2. If a party believes that a person who is not a party has or is likely to have, or has had or is likely to have had, in the person’s control, documents that are directly relevant to an issue raised on the pleadings or affidavits (affidavit with OA or response to OA), the party may apply to the Court for an order that the person make discovery of the documents to the party: r20.23(1)
3. Application under r20.23 must be served personally on the person and MUST be accompanied by an affidavit stating facts on which application relies and id as precisely as possible, docs, or category of docs to which application relates: r20.23(2) FCR
4. If the Court orders a person who is not a party to make discovery, the **person must file a list of documents, in accordance with r 20.17: r20.24 **FCR
5. Non-party can apply for order as to costs and expenses: r20.25 FCR
6. If a non-party is ordered to give discovery under r20.23 but refuses or neglects to allow inspection of the documents, the party who applied for the discovery may apply to the Court for an order that the non-party produce for inspection any document that is included in the non-party’s list of documents and that is in the person’s control: r20.33 FCR