welcome to laws 13017 civil procedure this week it's topic six on disclosure I'm Andrea Turner the term disclosure also known as Discovery in other jurisdictions refers to procedures by which one party to litigation can obtain information and documents held by other parties it's the commen commencement of a paper chase the purpose of which is to ensure the parties are fully appraised of the case to be met at trial and have access to relevant information which may support their own case or may be useful in settlement deliberations it's also important that relevant facts are available to be brought before the court to assist it in in fun in its functions of determining where the truth lies parties disclose relevant documents to their opponents and make those documents available for inspection it also encompasses processes enabling one party to ask the other a series of questions known as interrogatories designed to obtain Admissions and again to appraise the interrogating party of the case to be met at trial limiting disclosure reduces costs which would otherwise become disproportionate to the relief sought in the litigation disclosure is also constrained by principles concerning privilege and other restrictions that attempt to strike a balance between full access to documents and the valid protection of important relationships and other interests and sensible control of the expenses of the process the objectives for topic six are for you to understand the requirement for disclosure from parties and non-parties understand the requirements for inspection of documents understand the requirements for interrogatories identify the types of privilege and the concept of Legal Professional privilege which is the main type of privilege that you encounter C your study guide contains a diagram entitled The disclosure decision tree which you must follow when considering disclosing a document let's briefly have a look at the process the first question to ask is whether disclosure is needed are the issues based on documents does the client have documents then you need to consider the scope of the disclosure what is the extent of the disclosure requirements can it be limited by any category or is the disclosure at large or extensive is an order for disclosure necessary this wouldn't be necessary for example if the parties were agree to make disclosure but if it is required an application can be made under rule 223 when looking at the client's documents you should inform the client of the disclosure obligations and obtain access to all files and other electronic records you then consider its admissibility is it a document relevant to the issues in the action is it a document that's privileged and therefore doesn't need to be disclosed does the document relate to a category of documents and is the document a duplicate of an existing original document which therefore can be ignored you then get to the stage of creating a list of documents once you've identified the disclosable documents and you've identified lost destroyed documents and you've identified the privileged documents and these are listed you will then need to verify the list by way of Affidavit of the client verifying those documents you then exchange the documents the list is served on the other party and exchange between parties and finally there is inspection this can be electronic or physical inspection of your client's documents and of the other party's documents and identifying documents which are essential to your case which you can identify by reading the other party's documents interlocutory disputes concerning disclosure and inspection can Arise at any stage of the of the um in the green regions of the diagram on page six of the study guide that is for the list of documents through to inspection the requirements for disclosure of documents set out in the uniform civil procedure rules chapter 7 the disclosure rules apply to proceedings started by claim or if the court directs proceedings started by application under rule 209 the duty of disclosure is stated in rule 211 a party to a proceeding has a duty to disclose to each other party each document firstly in the possession or under the control of the first party and secondly directly relevant to an allegation in issue in the in the pleadings and thirdly if there are no pleadings then directly relevant to the matter in question in the proceeding this duty of disclosure continues until the proceeding is decided and an allegation remains an issue until it is admitted withdrawn struck out or otherwise disposed of you can see therefore that there is a continuing obligation for disclosure as the matter proceeds let's have a look at the methods of disclosure essentially disclosure can occur by either of the two methods Disclosure by delivery of a list of documents and copies under rule 214 or Disclosure by inspection of documents under rule 216 rule 214 is Disclosure by delivery of a list of documents and copies and it says that subject to rules 216 and 223 a party to a proceeding performs the duty of Disclosure by delivering to the other parties in accordance with this part a list of documents to which the duty relates and the documents in relation to which privilege from disclosure is claimed so there's a list once again of privileged documents and at A party's request delivering to the party copies of the documents mentioned in the list of documents other than the documents in relation to which privilege from the disclosure is claimed there are varying time requirements set out in rule 214 but disclosure generally occurs within 28 days after the close of pleadings a party may be required to produce for inspection and original of the disclosed document according to rule 215 the second method of disclosure that set that's set out in rule 216 is Disclosure by inspection of documents this rule applies if firstly it's not convenient for a party to deliver documents under War 214 because of the number size quantity or volume of the documents or some of the documents or there is a requirement for production of documents made by a party under rule 2115 if rule 216 applies the party must affect Disclosure by producing the documents for inspection at the time specified in rule 214 subsection 2 or 3 and notify the other party in writing of a convenient place and time at which the documents may be inspected rule 2117 sets out procedure for Disclosure by producing documents including how they're arranged and set out make sure you read that rule in detail subject to rule 220 deferral of disclosure a party who does not make use of the opportunity to inspect documents under a notice under rule 216 may not inspect the documents unless the party tenders an amount for the reasonable cost of providing the opportunity for inspection or the court orders otherwise under R 222 a party May by written notice require another party in whose proceedings particulars or affidavits mentioned is made of a document to produce the document for the inspection of the party making the requirement or the solicitor for the party and to permit copies of the documents to be made a court may make orders in relation to disclosure or inspection under rule 223 privileged documents may be excluded from disclosure privileged documents need not be disclosed courts can inspect a document over which privilege is claimed under rule 223 subsection 5 a party May challenge a claim for privilege under rule 213 one of the initial questions that needs to be asked is whether what is intended to be disclosed as a document there are two pieces of legislation that Define what is a document firstly the acts interpretation act 1954 Queensland section 36 section 2 subsection 1 and 7 subsection 1 under the ACT interpretation act 1954 Queensland a document includes any paper or other material on which there is writing marks figures symbols or perforations having a meaning for a person qualified to interpret them and any disk tape or other article or any material from which sounds images writings or messages are capable of being produced or reproduced with or without the aid of another article or device similarly Under The Evidence Act 1977 Queens land Section 3 the definition of document in schedule 3 includes the addition to a document in writing any part of the document in writing or of any other document as defined and any book map plan graph or drawing any photograph any label marking or any other writing which identifies or describes anything of which it forms part or which is attached by any means what whatever and any dis tape soundtrack or any device in which sounds or other data not being visual images are embodied so as to be capable with or without the aid of some other requipment of being reproduced there form at any film tape or other device in which one or more visual images are embodied so as to be capable with or without the aid of some other equipment of being reproduced there from and finally any other record of information whatsoever the provisions that Define what a document is are extremely broad the next question rarely resolves around whether a document is relevant under rule 20112 the duty of disclosure does not apply to a document in relation to which there's a valid claim to privilege from disclosure several types of documents are not privileged from disclosure a document relevant only to credit and any additional copy of the document already disclosed if it's reasonable to suppose the additional copy contains no change obliteration or other Mark or feature likely to affect the outcome of the proceeding and a document consisting of a statement or a report of an expert uh or a a report of an expert is not privileged from disclosure a party May disclose to another party a document relating only to damages only if the other party asks for its disclosure under rule 221 the court May provide relief from the duty to disclose under rule 224 having regard to the likely time cost and inconvenience involved in disclosing the document or classes of documents compared with the amount involved in the proceeding the relevant importance of the question to which the document or classes of documents relate the probable effect on the outcome of the proceeding that disclosing or failing to disclose the documents or classes of documents and other relevant considerations it's very important to bear in mind that the ucpr rule 211 2011 States that a party to a proceeding has a duty to disclose to each other party each document directly relevant so it has to be directly relevant to an allegation and issue in the pleadings and if there are no pleadings it has to be directly relevant to a matter in issue in the proceeding you must make sure that it's a document you must make sure that there's no claim to privilege but you must make sure that it's directly relevant to the allegations in issue in the pleadings otherwise you don't have a duty to disclose it the next issue revolves around the question of possession or under the control of a party it's very difficult to disclose things that you don't have possession or that are not under your control ucpr rule 211 provides that a party to a proceeding has a duty to disclose to each other party each document in the possession or under the control of the first party so it must be under your possession or under the control and directly relevant to an allegation in issue in the proceeding possession itself refers to the right to physical possession of a document control refers to the power of directing or command if you have the power to direct somebody else or command somebody else to give you the documents then those documents may be subject to disclosure if it's in your physical position in your hands or you have physical control over it then it is potentially a document that can be disclosed apart from particular disclosures under rule 223 the court may make orders for further disclosure and additional disclosure in relation to particular matters it's preferable that disclosure should be done properly in the first place because otherwise it's incurring additional costs you waste time with court orders to obtain further disclosure rule 220 outlines the procedure enabling parties to defer disclosure should they so wish disclosure of documents electronically is quite common these days since many documents are now in electronic form rather than in physical printed form practice Direction Number 10 of 2011 entitled the use of technology for the efficient management of documents in litigation issued on the 22nd of November 2011 outlines the procedures for electronic disclosure make sure you download a copy of that from the court website and have a read of that particular practice Direction Let's now consider parties and solicitors obligations ucpr rule 226 deals with disclosure certificates by the solicitor having conduct of a proceeding for a party who must give to the court at trial a certificate addressed to the court and signed by the solicitor stating that the duty of disclosure has been fully explained to the party and that if the party is a corporation it should identify the individual to whom the duty was explained the certificate must be prepared and signed at or immediately before the trial the consequences for failure to disclose is set out in rule 225 and they can be quite harsh potential consequences include the inability to Tender a document a trial without leave contempt of court the payment of costs the risk of a stay or dismissal of the seedings the risk of a judgment or even a risk for of an order for disclosure disclosure from non-parties and potential parties rule 242 provides a procedure for notice requiring non-party disclosure a party the applicant to a proceeding May by notice of non-party disclosure require a person who was not a party to the proceedings the respondent to produce the app to the applicant within 14 days after service of the notice a resp on notice on the respondent a document directly relevant to an allegation in issue in the pleadings and in the possession or under control of the respondent and that is a document to the respondent could be required to produce at the trial of the matter it's a way to which in which to get documents from third parties who are holding them let's now look look at interrogatories interrogatories are a process enabling a party to ask questions of another party designed to obtain Admissions and to appraise the case to be met at trial the answers to which can be tendered as evidence interrogatories may be delivered at any time with leave of the Court under rule 230 and there are restrictions on the number of interrogatories that can be asked and that's found in rule 229 rule 231 deals with the answering of interrogatories it says that a person to whom interrogatories are delivered is requ to answer them the person must answer the interrogatories within the time ordered by the court and by delivering to the interrogating party a statement in answer to the interrogatories together with an affidavit and verifying the statement well 232 deals with the statement in answer to interrogatories it says that a statement in answer to interrogatories must comply with this rule unless the court otherwise orders the statement must specifically answer the substance of each interrogatory or alternatively object to answering each interrogatory an answer must be given directly and without resort to technicality and an objection must specify the grounds of the objection and briefly State the facts upon which the objection is made failing to answer or providing an insufficient answer to any interrogatory may result in an order to answer or alternatively an order requiring an oral examination where the party is hauled into court and the questions are asked before the judge under rule 236 in terms of objection to answering interrogatories R 233 provides that the following are the only grounds on which a person may object to answering an interrogatory firstly the interrogatory does not relate to a matter in question or likely to be in question between the person and the interrogating party the interrogatory is not reasonably necessary to enable the court to decide the matters in question between the parties there is likely to be available to the interrogating party at the trial another reasonably simple and inexpensive way of proving the matter sort to be elicited by the interrogatory the interrogatory is vexatious or oppress or oppressive or is privileged in the case of unnecessary interrogatories rule 234 provides that on application an order that a person is not required to answer an interr atory may be made to order limiting the extent to which the person is required to answer an interrogatory hence there can be an interlocutory application to sort out questions of interrogatories and privilege the duty of disclosure does not apply to a document in which there is a valid claim to privilege a claim to privilege is made by affidavit by an individual knowing the facts giving rise to the claim the court May inspect a document to decide any questions of privilege you're aware of Legal Professional privilege which relates to confidential information passing between a client and their legal advisor need not be given in evidence or otherwise disclosed by the client and without the client's consent may not be given in evidence or otherwise disclosed by the legal advisor if made either one to enable a client to obtain or the advisor to give legal advice or two with reference to litigation that is actually taking place or was in cont contemplation of the client there are two types of Legal Professional privilege legal advice privilege and litigation privilege confidential C Communications passing between the client and legal advisor with the dominant purpose of giving or obtaining legal advice is legal advice privilege confidential C Communications passing between client legal advisor and third parties with the dominant purpose of use in or in relation to litigation which is either pending or contemplating proceedings is litigation privilege the other privilege I'd mention is the privilege against self-incrimination this privilege may be claimed for documents which if produced would expose the party or their spouse to a criminal offense or recovery of the penalty that is also a ground of privilege another form of privilege relates to public interest under rule 239 this part does not affect a rule of law authorizing or requiring the withholding of a matter on the ground its disclosure would be injurious to the public interest the objection is that disclosure would be injurious to the public interest the objection may be taken by the crown a party acting on instructions of a government Department the attorney general or by the court itself categories would include interests of the states such as National Security frustration of diplomacy impairment to the public service or government business it would protect police informants statutory Authority informs and also State and diplomatic documents let's now look at without prejudice Communications in the case of field and commissioner for Railways New South Wales 1957 199 Comm law reports 285 settlement negotiations proceeded on the basis of a letter marked without prejudice which sought a medical examination Council objected to a specialist recounting what what the plaintiff had told him the Court held that the statements to the specialist were not reasonably incidental to the settlement negotiation so as to be protected by privilege the statement off the Record was considered to be meaningless generally have a look also at The Evidence Act 1995 Commonwealth section 131 which excludes evidence of settlement negotiation ations in topic six we've been concerned with the procedures by which one party to litigation is able to obtain information and documents held by other parties the main procedures are disclosure and interrogatories these procedures prevent trial by Ambush and enable access to evidence clarification of the case to be met and Aid pre-trial preparation and potential settlement in next week's topic we'll be examining further means of obtaining evidence and the topic of affidavits until then bye for now