Disclosure and the Inspection of Documents
In Queensland, if a Court proceeding is started by a Claim and Statement of Claim, the parties to that proceeding have a duty to disclose to each other all documents directly relevant to an allegation in issue in the pleadings, provided the documents are in the possession or under the control of the parties.
The duty of disclosure is performed by each party delivering to the other a list of documents within 28 days after the close of pleadings and by producing, within 14 days after the request, any document requested by a party under the list of documents.
If it is not convenient for a party to deliver documents because of the number, size, quantity or volume of the documents, a party will be required to effect disclosure by notifying the other party of a convenient place and time at which the documents may be inspected.
The duty of disclosure continues until the Court proceeding is finalised.
The duty of disclosure will not apply to a document in respect of which there is a valid claim of privilege or is relevant only to credit, however a statement or report of an expert will not be privileged from disclosure.
If on the other hand, a party requires disclosure of a document that is in the possession or under the control of a person that is a not a party to the Court proceeding, the party may request disclosure by issuing a non-party disclosure notice on the non-party.
In order to be a valid non-party disclosure request, the document must be directly relevant to an allegation in issue in the pleadings and there must not exist any other reasonably simple and inexpensive way of proving the matter sought to be proved by the document.
Unless the non-party objects to disclosure on the grounds of confidentiality, privilege or some other valid reason, the non-party is required to produce the document to the requesting party within 14 days after receiving the non-party disclosure request.
A party is also permitted to request, by written notice, the production of any document mentioned in the pleadings or affidavits of the other party.
Finally, the consequences for non-disclosure in Queensland are serious and a failure to discharge the duty of disclosure may not only prejudice the non-complying party at trial (by having the Court refuse to tender the document into evidence for instance) but it may also render the party liable to contempt for not disclosing the document and in certain circumstances, prompt the Court to dismiss all or part of the proceeding or issue a judgment in favour of the other party.
As with all areas of dispute resolution involving litigation, the rules regarding disclosure and privilege can become complex very quickly. To get advice from expert dispute resolution lawyers, please call Certus Legal Group on 07 3106 3016 or contact us using the form on this page.
This article does not give legal advice and should not be relied upon as such. It is intended to provide general and summary information on legal topics, current at the time of first publication. You should seek professional legal advice before acting or relying on any of the content contained herein.