Topic 6: Disclosure

Question 1

Topic 6: Disclosure

Answer 1

This is where you have the facts with a number of small issues left. We then need to get the evidence on those issues. The two different types of evidence is documents or material facts. From the parties, we are getting disclosure by way of exchange of documents between the parties

Question 2

Rule 210 Nature of disclosure

Answer 2

In a proceeding, disclosure is the delivery or production of documents. Each party will each prepare a list of documents they have and will exchange those lists.

Question 3

Scope of Disclosure is limited by:

Answer 3

the facts on which the parties have joined issue/facts that are not admitted

Question 4

Rule 211 Duty of Disclosure

Answer 4

(1) A party to the proceeding has a duty to disclosre to each other party each document in their possession or under their control (can request) or directly relevant to an allegation.
(2) Duty to disclose continues until the proceeding is decided.
(3) allegation remainds issue until admitted, withdraw, struck out or dispose of.

Question 5

Meaning of directly relevant

Answer 5

Directly relevant confines and restricts what is relevant. Usually something that disproves or approves a case.

Question 6

Legal meaning of in possession and under control

Answer 6

Consider in terms of what authority you have over the documents, as it may be expressed authority/physical control. However, most legal documents are held electronically.

Question 7

What is a document?

Answer 7

s36 Acts Interpretation Act
- Any paper or material on which there is writing, marks, figures, symbols or perforation having a meaning for person qualified to interpret them and any disc, tape or other articular or any material form of sounds, images, writing or messages are capable of being produced or reproduced.

Question 8

Disclosure by delivery of list of documents and copies

Answer 8

Rule 214

Party to a proceeding performs the duty to disclose by delivering to the other party and delivering copies mentioned in the list.

Question 9

Times for delivery of the lists

Answer 9

Rule 214

If an order for disclosure is made before close of proceedings, then the times are stated in the order.

If an application for a summary decision is made within 28 days after the close of proceedings and the pleadings is not entirely disposed of when decided, then it must be within 28 days after the decision.

If further pleading or amendment, must be within 28 days after the further pleading or amended pleading is delivered.

If the first occasion where the document comes into possession or control of the party, it must be within 7 days after the occasion happens

otherwise, within 28 days after the close of proceedings

Question 10

Requirement to produce original documents

Answer 10

Applies if it is not inconvenient for a party to delivery documents due to size, number, quantity or volume
or
a requirement for production of the documents is made under Rule 215.

Where it applies, parties must effect disclosure by producing the documents for inspection and notifying the other party in writing of a convenient place and time for inspection of the document

Question 11

Procedure for disclosure by producing documents

Answer 11

Rule 217

Applies where a party discloses documents by producing them.

Documents must be:

contained together and arranged in a way that is easily accessible and convenient for inspection by who produces them

and

Identified in a way enabling particular documents to be retrieved easily on later occasions

Question 12

Party producing the documents must:

Answer 12

Rule 217

• Provide facilities for inspection
• Make available a person who is able to explain the arrangement of documents and hel locate and identify documents
• Provide a list of documents the party claims privilege

Question 13

The arrangement of documents

Answer 13

Rule 217

Must not be disturbed more than necessary or not distributed at all if required by the party (to whom the documents are produced to)

Question 14

Inspection of documents referred to in pleadings or affidavits

Answer 14

Rule 222

If referred to in the pleadings, you can ask for it at the time before you get the list.

Question 15

Documents to which disclosure does not apply

Answer 15

Rule 212

• Documents under privileged from disclosure
• Document relevant to only credit
• Additional copy to something already disclosed
• A document consisting of a statement or report of the expert is not privileged

Question 16

Test for Disclosure

Answer 16

• Possession or control

- Directly relevant

Question 17

Privilege and Waiver

Answer 17

Current test is the dominant purpose test.

Question 18

Privilege Claim

Answer 18

If a party claims privilege from disclosure of a document and the other party challenges it, then the party making the claim must within 7 days file and serve on the other party an affidavit stating the claim.

Question 19

Relief from disclosure

Answer 19

Rule 224

Where documents are to costly or inconvenient to apply, the court may order a party to be relieved from the duty to disclose.

Court looks at:

• Time, cost and inconvenience
• The relative importance
• The probable effect on the outcome
• any other relevant consideration

Question 20

Consequences of Non-Disclosure

Answer 20

Where a party does not disclose a document, the court will refuse to allow you to tender that document for it to become evidence induced in court unless the court grants leave.

• The party may be liable for contempt of court -
• and may be ordered to pay costs or part of costs of the proceeding.

Where they do not disclose, then the party may apply for notice of the court:

• An order staying or dismissing part or all the proceeding
• make judgement against the party refusing to disclose
• order the document be disclosed

Question 21

Solicitors Obligation

Answer 21

There is an obligation of the solicitor to give the court a certificate addressed to the court and signed by them stating the duty to disclose has been fully explained;

and if the party is a corporation, that they identify the individual whom the duty was explained to.

Must be signed and prepared at or immediately before trial.

if your client refuses to give you something that needs to be disclosed, then you need to apply to the court for leave to withdraw from the proceeding and cease acting for the client.

Question 22

Production of documents at trial

Answer 22

Documents must be disclosed at trial if:

Notice to produce them has been given with reasonable particularity; and

Their production is asked for at trial.

Question 23

Notice requiring non-party disclosure

Answer 23

The party in the proceeding may require a person who is not a party to the proceeding to produce to the applicant within 14 days after service of the notice on them, a document:

that is directly relevant to an allegation; and

in their possession or control; and
that it is a document the respondent could be required to produce at the trial.

It won’t be required if there is an inexpensive or more reasonable way of proving the matter.

Their disclosure is not an ongoing duty

Question 24

A notice of non-party disclosure must:

Answer 24

• Be issued in the same way as a claim
• State the allegation in issue for which the document sought is directly relevant
• include a certificate signed by the applicant’s solicitor stating there is no other reasonable way.
• be in approved form
• served in the same way as a claim and within 3 months after its issue

Question 25

Objection to non-party disclosure

Answer 25

They may object within 7 days of service. A person who has been affected by it may also object.

The objection must be written, served on the applicant, and clearly state the reasons for the objection.

After 7 days after service of objection, the applicant may apply to the court for a decision on the objection. The court will make an order it considers appropriate e.g. lifting the stay, varying the notice of non-party disclosure or setting the notice aside.

Question 26

Costs of production

Answer 26

The applicant must pay the respondent’s reasonable costs and expenses of producing a document.

Within 1 month after producing the document, the respondent must give to the applicant written notice of the respondent’s reasonable costs and expenses producing it.

Question 27

Interrogatories

Answer 27

The purpose of interrogatories is to obtain admissions to assist in proving or disproving a case limited to 30 questions and can only be delivered with the leave of the court.

Question 28

Delivery of interrogatories

Answer 28

With the court’s leave, a person many at any time deliver interrogatories to a party in the proceeding, including a third party to help decide whether a person is an appropriate party to the proceeding.

Question 29

Granting leave to deliver interrogatories

Answer 29

The court may give leave to deliver interrogatories on application without notice only if its satisfied that its not likely to be available to the application.

Applicant must be provided with a draft.

Question 30

Answering interrogatories

Answer 30

A person to whom interrogatories are delivered is required to answer them within the time ordered by the court by delivering to the interrogating party a statement in answer to the interrogatories and an affidavit verifying the statement.

The statements of interrogatories must answer or object to answer it directly. Objection must specify grounds of objection and briefly state facts on which objection was made.

Question 31

Freezing order

Answer 31

A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with or diminishing the value of those assets.