What is disclosure and how can it affect my case?
For participants involved in civil litigation in the Queensland, one of many important steps is that of ‘disclosure’. In broad terms, ‘disclosure’ refers to the process of exchanging documents which are relevant to the issues in dispute in a proceeding. This article briefly examines the obligations of ‘disclosure’ under the Queensland Court Rules (Uniform Civil Procedure Rules 1999 or “UCPR”)).
When and how must disclosure be made?
In general terms, disclosure must be effected by delivering a list of the relevant documents to the other party or parties involved in a dispute. The list of documents is an approved form under the UCPR and can be obtained from the QLD Courts website. If copies of any documents in the list are requested, you must provide (at your cost) a copy of that document to the party requesting within 14 days.
The UCPR provides that in most cases, disclosure must be made within ’28 days after the close of pleadings’. ‘Pleadings’ are the court documents filed by the parties which define the issues to be determined by the Court. In many cases, the filing by the plaintiff of a ‘Reply’ marks the ‘close of pleadings’ for the purpose of the disclosure rules however this can vary in some cases.
What documents must be disclosed?
Rule 211 of the UCPR requires each party to disclose documents which are:
(a) in the possession or under the control of the 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.
While on its face it appears a straightforward provision, there has been many cases decided on the application of the rule to particular situations. This article does not include a detailed review of those decisions so it is important that you apply the rules carefully to each individual case.
When are documents under a party’s possession or control?
With respect to limb (a):
‘possession’ means “the physical or corporeal holding of the document pursuant to a legal right to its possession”; and
‘control’ means that the party has the power to exercise discretion over the document. It does not necessarily mean exclusive control, and documents possessed or controlled jointly with another person must be provided.
Possession will extend to documents on a party’s computer or in situations where the party has a right to possess the document (such as a document held at a location away from the person’s usual residence). Control includes the situation where a document can be accessed by request from a third party.
When are documents directly relevant to an allegation in issue in the pleadings?
This limb of the test (whether a document is ‘directly relevant’) is another which has been the subject of regular litigation. A document is directly relevant if it tends to prove or disprove an allegation in issue in the proceeding. This meaning came from a 1997 case which been endorsed repeatedly by courts considering the meaning of this phrase in the UCPR.
Exceptions to requirement to disclose
The UCPR provides that the following documents do not need to be disclosed:
(a) a document in relation to which there is a valid claim to privilege ;
(b) a document relevant only to credit;
(c) an additional copy of a document already disclosed, if it is reasonable to suppose the additional copy contains no change, obliteration or other mark or feature likely to affect the outcome of the proceeding.
Disclosure obligations are ongoing
Rule 211(2) of the UCPR provides that the duty of disclosure continues until the proceeding is decided. This means that if a document comes into your possession or control at a later time, it must still be disclosed in accordance with the rule.
While the duty of disclosure might appear on its face as being straightforward or ‘common sense’, it has the power to win or lose cases. For this reason, it is vital that pleadings in any litigious matter be carefully drafted and understood to maximise the benefit of disclosure under the rules.
 Robson v Reb Engineering Pty Ltd  2 Qd R 102