Disclosure/ Non-Party Disclosure

Question 1

Which rules deal with disclosure in the UCPR?

Answer 1

Rules 209-227

Question 2

Which rules deal with non-party disclosure in the UCPR?

Answer 2

Rules 242-249

Question 3

Does disclosure under UCPR rules apply only to proceedings started by claim?

Answer 3

No. Court can order disclosure in proceeding commenced by application.

Rule 209 (1) (c)
Julstar Pty v lynch Morgan Lawyers

Question 4

What does a party have a duty to disclose?

Answer 4

Each document:

a. in the possession or under the control of the first party; and

b. directly relevant to an allegation in issue in the pleadings; and

c. if there are no pleadings - directly relevant to a matter in issue in the proceeding.

Question 5

How long does a party have a duty to disclose?

Answer 5

Until the proceeding is decided.

Rule 211 (2)

Question 6

How long will an allegation remain in issue?

Answer 6

Until it is admitted, withdrawn, struck-out or otherwise disposed of.

Rule 211 (3)

Question 7

Are there documents to which disclosure does not apply?

Answer 7

Yes.
1. if there is a valid claim of privilege
2. a document relevant only to credit
3. a copy of a document already disclosed (provided no changes on the duplicate)

Rule 212

Question 8

Explain some different types of privilege.

Answer 8

1. Legal professional
2. Self-incrimination (see Environment Protection Authority v Caltex)
3. Public interest
4. Parliamentary privilege
5. Without prejudice privilege

Question 9

Are copies of privileged documents also subject to privilege?

Answer 9

Yes

Commission of Australian Federal Police v Propend Finance

Question 10

Do documents relating solely to credit need to be disclosed?

Answer 10

No. Unless credit is in issue in the proceedings.

Rule 212
Rooskov v Lanconholme

Question 11

What is the process for dealing with a privilege claim?

Answer 11

If:
1. Party claims privilege
2. Other party challenges the claim; then
3. The party claiming privilege must file and serve affidavit stating the claim within 7 days.

Rule 213

Question 12

When must a list of documents be provided?

Answer 12

See Rule 214

Remember 28 days from each critical point/ order etc.

Question 13

Can a party request inspection of original documents?

Answer 13

Yes

Rule 215

Question 14

Which rule deals with inspection of documents?

Answer 14

Rule 216

Question 15

What is the procedure for producing documents for inspection?

Answer 15

The basic premise is to make them ordered and easily accessible for the other party. Have someone available to explain how they are arranged and assist in locating particular documents etc.

Provide a list of any documents subject to privilege.

Rule 217

Question 16

What is the rule that deals with costs and disclosure?

Answer 16

Rule 219

If given notice to inspect under Rule 216 and don’t do so, then the party wanting to inspect later on must pay costs for further opportunity to inspect UNLESS the court otherwise orders.

Question 17

Can a party defer disclosure?

Answer 17

Yes disclosure can be differed into stages to save costs BUT if a specific document is requested, must provide.

Rule 220

Question 18

Disclosure of documents relating only to damages.

Answer 18

May be provided only if the other party requests it.

Rule 221

Question 19

If an unambiguous reference is made to a document in a pleading, can a party make a disclosure request for that document?

Answer 19

Yes. Rule 222

Doesn’t apply to exhibits or affidavits (Century Drilling v Gerling Australia)

Can’t use R222 to overide professional privilege (Balnaves v Smith)

Question 20

What rule gives power to court to order a party to diclose documents and when might this happen?

Answer 20

Rule 223

Order will only be made if:
a. Special circumstances/ interests of justice require it; or

b. Objective likelihood that duty hasn’t been complied with or document has passed out of possession/ control.

Question 21

What can a court do if an objection is made to an application for disclosure request?

Answer 21

Court can inspect the document to decide the objection.

Rule 223 (5)

Question 22

Can a party be relieved from a duty to disclose?

Answer 22

Court has a general power to excuse a party, wholly or partially, from duty of disclosure.

Rule 224
Coster v Bathgate

Question 23

What are the consequences for non-disclosure of a document?

Answer 23

• Party may be restricted from tendering non-disclosed document (Dougmax v Hodges).
• Party is liable to contempt for not disclosing; and
• Party may be ordered to pay costs or part of the costs of the proceeding.

Rule 225

Question 24

What must a solicitor do prior to the start of a trial (concerning disclosure)?

Answer 24

Give a signed certificate to the court stating disclosure has taken place.

If concerned client has not complied, must withdraw (Myers v Ellman)

Rule 226

Question 26

If disclosed documents are asked for at the trial, a party must produce them. Is there also an implied undertaking that the documents are legitimate and not fake?

Answer 26

Yes must produce when given notice to produce, and implied undertaking exists. ## Footnote Rule 227 *City Hall v Chicago Investments*

Question 27

What is the premise of Rule 242? | Non-party disclosure

Answer 27

Must not be used for a fishing expedition and can only be requested if directly relevant. ## Footnote Rule 242 *Naskam Security Services v Adarm Security*

Question 28

Can only issue non-party disclosure request once pleadings closed. | Name the case.

Answer 28

*Knight v Medical Superintendent*

Question 29

A respondent to a notice is not required to ascertain what is needed from an 'unlear' notice. | Name the case.

Answer 29

Chenoweth v ING Australia

Question 30

A non-party disclosure request is inappropriate if the dicument can be obtained reasonably elsewhere. (Like via a govt. department) | Name the case.

Answer 30

Erskine v McDowall

Question 31

What is the form and service for notice for non-party disclosure?

Answer 31

Form 21 Basically the same as a claim. ## Footnote Rule 243

Question 32

If the notice refers to other third parties not part of the proceedings or the Notice, then it needs to be served on them within 3 months. | Others affected by notice.

Answer 32

Rule 244

Question 33

Can a party who has been served with a notice of non-party disclosure object to the production of some or all of the documents requested?

Answer 33

Yes. Rule 245. Within 7 days OR at a later time with leave of the court. Reasons may include, relevance, lack of particularity, claims of privilege or confidentiality.

Question 34

What happens once a non-party has objected to the disclosure request?

Answer 34

Onus moves onto the issuer of the notice (applicant) to apply to the court for the disclosure. ## Footnote Rule 247 *Smith v OLeary*

Question 35

Who is responsible for the costs of producing the documents subject of a non-party disclosure request?

Answer 35

The applicant. ## Footnote Rule 248 *NJH Pty Ltd*