Uniform Civil Procedure Rules 1999 (UCPR Qld) - Digest
back to table of provisionsChapter 7 – Disclosure
- Part 1--Disclosure by parties
- [209] Application of pt 1
- [210] Nature of disclosure
- [211] Duty of disclosure
- [212] Documents to which disclosure does not apply
- [213] Privilege claim
- [214] Disclosure by delivery of list of documents and copies
- [215] Requirement to produce original documents
- [216] Disclosure by inspection of documents
- [217] Procedure for disclosure by producing documents
- [219] Costs
- [220] Deferral of disclosure
- [221] Disclosure of document relating only to damages
- [222] Inspection of documents referred to in pleadings or affidavits
- [223] Court orders relating to disclosure
- [224] Relief from duty to disclose
- [225] Consequences of nondisclosure
- [226] Certificate by solicitor
- [227] Production of documents at trial
- [228] Entitlement to deliver interrogatories
- [229] Delivery of interrogatories
- [230] Granting of leave to deliver interrogatories
- [231] Answering interrogatories
- [232] Statement in answer to interrogatories
- [233] Grounds for objection to answering interrogatories
- [234] Unnecessary interrogatories
- [235] Identity of individual by whom verifying affidavit to be made
- [236] Failure to answer interrogatory
- [237] Failure to comply with court order
- [238] Tendering answers
- Division 1--Disclosure and inspection of documents
- Division 2--Interrogatories
Division 1--Disclosure and inspection of documents
[209] Application of pt 1 go to top
Rule 209(1)(c) contemplates that the Court may direct that disclosure by parties in accordance with Part 1 of Chapter 7 take place in a proceeding started by application. Specific disclosure will be ordered in appropriate cases if to do so is in the interests of justice and if it facilitates the just and expeditious resolution of the real issues in the proceedings. If a case is made out for disclosure, then a suitably-tailored order should be made, rather than simply expect disclosure to be made in accordance with Part 1 of Chapter 7: Waratah Coal Pty Ltd v Nicholls [2013] QSC 68, [133] (Applegarth J).
An application seeking an order of contempt of the Court against the respondent is not, without order that it proceed as if commenced as a claim, a matter to which Part 1 of Chapter 7 applies: Henderson v Taylor, Information Commissioner of Queensland [2006] QCA 490, [48] (Court of Appeal, per McMurdo J).
[210] Nature of disclosure go to top
Where one party to litigation is compelled, either by reason of a rule of court or by reason of a specific order of the court or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence: Hearne v Street (2008) 235 CLR 125 at [96].
The Court may exercise its discretion to release parties from their implied undertaking where the existence of special circumstances can be shown by the party seeking release. It is sufficient to demonstrate that, in all the circumstances, there is good reason why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes: Corbiere v QPCU Limited [2018] QSC 32 (Lyons SJA) at [16].
Relevant factors include:
- the nature of the document;
- the circumstances under which the document came into existence;
- the attitude of the author of the document and any prejudice the author may sustain;
- whether the document pre-existed the litigation or was created for that purpose and therefore expected to enter the public domain;
- the nature of the information in the document (in particular whether it contains person
Corbiere v QPCU Limited [2018] QSC 32 (Lyons SJA) at [19].
Where new proceedings have been instituted, based upon disclosed documents in another proceeding, the court has power to retrospectively provide a release from the implied undertaking or strike out the proceedings: Corbiere v QPCU Limited [2018] QSC 32 (Lyons SJA) at [21]-[22].
In an appropriate case, the implied obligation can be supplemented by a framework created by express orders which are designed to protect confidentiality: eg Tri-Star Petroleum Company & Ors v Australia Pacific LNG Pty Limited [2017] QSC 136 (Bond J).
[211] Duty of disclosure go to top
In the ordinary case, there must be something more than mere suspicion, to justify granting relief to a party complaining of incomplete disclosure: Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276; [1999] QCA 276, [10] (Pincus JA, Byrne J and McMurdo P agreeing).
Directly relevant
If a document is not “directly relevant” to an allegation in issue it need not be disclosed. It is not enough, to justify an order for disclosure, to hold the opinion that it is reasonable to suppose that the document contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. Nor, if a document sought is not directly relevant to an allegation in issue, does it matter whether or not it is a document which may fairly lead the party requiring discovery to a train of inquiry, which may have either of these two consequences: Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276; [1999] QCA 276, [7] (Pincus JA, Byrne J and McMurdo P agreeing).
The term “directly relevant” has been defined to mean something which tends to prove or disprove the allegation in issue. Often it is safer to include a document that is arguably directly relevant than to exclude it. Such a course avoids exposure to an accusation of having given inadequate disclosure and thereby having failed to meet an obligation under the Rules or a court order: Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd [2011] QSC 183, [16]-[17] (Applegarth J), citing Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276, [7].
Documents containing information both directly relevant and irrelevant to the proceeding
Where a document subject to disclosure contains information both directly relevant to, and not relevant to, an allegation in issue in a proceeding, the general principle is that the whole of the document should be disclosed: Menkens v Wintour [2006] QSC 342, [12] (Mackenzie J), citing Telstra Corporation v Australis Media Holdings (Unreported, Supreme Court of New South Wales, McLelland CJ in Eq, 10 February 1997); Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 335 (Selway J).
There is a serious risk that the masking of parts of a document, disclosable under r 211, on the ground of alleged irrelevance would create gaps affecting the ready comprehensibility of the remaining parts and of the context in which those parts appear. If for this or any other reason such masking would detract from a proper understanding of the meaning and significance of the admittedly relevant parts of the document, then such masking is not justified. Accordingly, in the absence of any reason to protect the part of the document for reasons of commercial sensitivity, the document should be disclosed in its original form: Menkens v Wintour [2007] 2 Qd R 40; [2006] QSC 342, [13] (Mackenzie J), citing Telstra Corporation v Australis Media Holdings (Unreported, Supreme Court of New South Wales, McLelland CJ in Eq, 10 February 1997).
A party is not entitled to avoid disclosure on the basis that a pleaded allegation was irrelevant. If a party wishes to avoid disclosure on this ground, they must obtain an order striking out the allegation: Goomboorian Transport Pty Ltd & Ors v Hanson & Ors [2018] QSC 135 (Bond J) at [124]
[212] Documents to which disclosure does not apply go to top
Privilege from disclosure
Copies of non-privileged documents are privileged if the copies are brought into existence solely for the purpose of obtaining or giving legal advice or solely for use in litigation that is pending, intended or reasonably apprehended: Brophy v Dawson [2003] QSC 346, [9] (Jones J), citing Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 509.
Experts
When an expert is engaged by a solicitor for the purpose of giving evidence in a case, documents generated by the expert and information recorded in one form or another by the expert in the course of forming an opinion are not a proper subject for a claim of legal professional privilege. Privilege may however be claimed in relation to communications between the expert and the solicitor (both ways) when such communication is made for the purpose of confidential use in the litigation: Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) [1999] 1 Qd R 141, 162 (Thomas J).
If an expert has prepared a draft report it is still his report or statement, no doubt normally reflecting his state of mind at the time he wrote it. The fact that, after consultation with lawyers in an action, he may prepare a further report or amend the draft does not prevent the draft from meeting the description in the Rules: Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2005] 1 Qd R 373; [2004] QSC 329, [13] (Douglas J).
The right to claim privilege in respect of medical reports based upon video surveillance is abolished by r 212(4): Coster v Bathgate [2005] QCA 210, [14] (McMurdo P, Muir and Philippides JJ).
[213] Privilege claim go to top
An affidavit claiming privilege might in many cases be sworn by the party’s solicitor, because the solicitor would be able to give original evidence of the facts justifying the claim: International Entertainment (Aust) Pty Ltd v Churchill [2003] QSC 247, [11] (McMurdo J).
[214] Disclosure by delivery of list of documents and copies go to top
In the usual case, the Court will order disclosure by delivery of a list of documents in accordance with r 214, unless the receiving party requires the disclosing party to produce specified original documents or if circumstances arise where it is not convenient for a party to deliver a list of documents, thereby requiring disclosure by production: Shannon v Park Equipment Pty Ltd [2006] QSC 284, [9] (Atkinson J).
Costs of providing copies in disclosure
Where there is a request for copies of documents referred to in a list, it is part of the obligation to make disclosure for the disclosing party to deliver copies, and by implication, to produce those copies at its own expense: Belela Pty Ltd v Menzies Excavation Pty Ltd [2005] 2 Qd R 230, 231 (McMurdo J).
[215] Requirement to produce original documents go to top
Disclosure by production requires production of the original documents, electronically if the original was in electronic form or by hard copy if the original was in hard copy form: Shannon v Park Equipment Pty Ltd [2008] 1 Qd R 299; [2006] QSC 284, [7] (Atkinson J).
[216] Disclosure by inspection of documents go to top
Where a party has performed its duty of disclosure by the production of documents under r 216(1)(a), the only list it is required to produce is the one referred to in r 217(3)(c), namely a list of the documents for which it claims privilege: Shannon v Park Equipment Pty Ltd [2008] 1 Qd R 299; [2006] QSC 284, [7], [9] (Atkinson J).
[217] Procedure for disclosure by producing documents go to top
Where a party has performed its duty of disclosure by the production of documents under r 216(1)(a), the only list it is required to produce is the one referred to in r 217(3)(c), namely a list of the documents for which it claims privilege: Shannon v Park Equipment Pty Ltd [2008] 1 Qd R 299; [2006] QSC 284, [7], [9] (Atkinson J).
[219] Costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[220] Deferral of disclosure go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[221] Disclosure of document relating only to damages go to top
The purpose of r 221 is to overcome the problem arising where a party would discover huge volumes of documents of marginal relevance and thereby put the opposing party to enormous cost in terms of examining the documents and also put his own side to such cost. It is, in other words, a measure designed to cut down expenses of the disclosure process. To achieve the purpose of the rule, a request made under it should be clear and unambiguous: Fribance v Hall Contracting Pty Ltd [2001] 1 Qd R 11, 13 (Fryberg J).
[222] Inspection of documents referred to in pleadings or affidavits go to top
The rationale of r 222 is that access to documents referred to in pleadings, particulars and affidavits should be given because it can be assumed, such reference having been made, that those documents are relied on by the party referring to them, or at least are regarded by it as material to its case: Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] 2 Qd R 481; [2004] QSC 120, [12] (Holmes J).
Rule 222 requires a “direct allusion” to the document and not only an inferred or implied reference. A mere reference to legal advice does not constitute a direct allusion: Balnaves v Smith [2008] 2 Qd R 413; [2008] QSC 215, [7], [10] (Douglas J).
Rule 222 does not, on its proper construction, override legal professional privilege: Balnaves v Smith [2008] 2 Qd R 413; [2008] QSC 215, [12] (Douglas J).
In circumstances where there is no inconsistency between the conduct of the client and the maintenance of confidentiality, there is no waiver of legal professional privilege: Balnaves v Smith [2008] 2 Qd R 413; [2008] QSC 215, [17] (Douglas J).
Documents referred to in an exhibit to an affidavit do not fall within the ambit of r 222: Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] 2 Qd R 481; [2004] QSC 120, [13] (Holmes J).
The applicant would not be precluded from seeking production of a document merely because the affidavit referring to it had been filed in an application completed before the request for inspection: Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] 2 Qd R 481; [2004] QSC 120, [14] (Holmes J).
Rule 222 does not require a party to produce a document referred to in pleadings or in particulars for inspection that it does not have in its possession: Harvey v Commonwealth Scientific and Industrial Research Organisation [2000] 2 Qd R 594; [1999] QSC 191, [32] (Ambrose J).
Rule 222 requires a clear and unambiguous reference to a document. Where it is impossible to identify a specific document referred to in the affidavit and the affidavit is ambiguous as to whether any document was in existence at the time relating to the particular reference, r 222 cannot operate: Lilypond Constructions Pty Ltd v Homann [2006] 1 Qd R 411; [2005] QSC 263, [14] (Mackenzie J).
[223] Court orders relating to disclosure go to top
The requirement of “direct” relevance contemplates a document tending to prove or disprove an allegation in issue. It is important to bear in mind however that while the criterion of direct relevance is likely to be determinative in assessing whether an order to disclose should be made pursuant to r 223(4)(b)(i) it will not necessarily be determinative as to whether an order to disclose should be made pursuant to r 223(4)(a), namely that there are special circumstances and the interests of justice require it: Gibson v Minister for Finance, Natural Resources and the Arts [2012] QSC 12, [8] (Henry J).
A person with appropriate authority and knowledge of the nature of the dispute in relation to the classes of documents said not to exist or not to be in the possession or control of the party making the affidavit, in the ordinary course, must swear an affidavit deposing to this. However, in circumstances where a solicitor has taken charge of the relevant documents for the purpose of pursuing the action, and there is an objective likelihood that the duty of disclosure has been complied with, that solicitor may be the appropriate person to swear such an affidavit: Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2005] 1 Qd R 373; [2004] QSC 329, [30] (Douglas J).
Rule 223 relates to orders the court may make with regard to disclosure. Those orders may be either for delivery or for production of documents. The court will apply the same test of whether to order disclosure by delivery or by production. First, in the usual case the court will order disclosure by delivery in accordance with r 214. Secondly, if the party who receives the list requires production of certain original documents from the disclosing party, and those documents are not produced, then the court will order their production. Thirdly, if, because of the number, size, quantity or volume of the documents or some of the documents, it is not convenient for a party to deliver a list and copies, then the court will order their production. In such a case, the only list required will be the list of documents subject to a privilege claim pursuant to r 217(3)(c) which would enable a court, for example, to order production of a document if privilege does not in fact attach to it: Shannon v Park Equipment Pty Ltd [2008] 1 Qd R 299; [2006] QSC 284, [8]-[9] (Atkinson J).
Satisfaction of r 223(4) operates as a precondition to an order for further disclosure being made: Integrated Medical Technology Pty Ltd v Gilbert (No 2) [2015] QSC 124, [9] (Jackson J).
Accepting that there is some greater flexibility under the rules for disclosure, in a practical sense it is difficult for a court to resolve a contest as to an order sought for further disclosure based on contentious affidavits. Deponents are not usually cross- examined, although that can and sometimes does occur. Ordinarily, the contest does not proceed to a final resolution of disputed questions of fact. Where the court is in doubt, it may be appropriate in some circumstances to order a party to file and serve an affidavit stating whether a specified document or class of documents does not exist or has never existed provided there are special circumstances and the interests of justice require it. But that power should not be seen as a general panacea in favour of a party who cannot discharge the onus of showing that it appears there is an objective likelihood that the duty to disclose has not been complied with by the other party: Integrated Medical Technology Pty Ltd v Gilbert (No 2) [2015] QSC 124, [5], [11] (Jackson J).
Rule 223 is not ordinarily applicable to judicial review applications, because of the operation of r 209. Disclosure may be sought, as a matter of discretion, under r 573: BHP Coal Pty Ltd v Treasurer and Minister for Trade and Investment [2017] QSC 326 (Davis J) at [49].
[224] Relief from duty to disclose go to top
The discretion to be exercised under r 224 is unfettered except by the constraint that it be exercised judicially in the particular circumstances of each case: Coster v Bathgate [2005] 2 Qd R 496; [2005] QCA 210, [20] (McMurdo P, Muir and Philippides JJ).
Confidentiality will not, of itself, provide protection from disclosure. There must be a real risk of the misuse of the information that, when considered against the potential for an injustice to a party by being denied full access to directly relevant material, warrants a departure from the normal operation of the Rules: Seeker Aircraft America Inc v Seabird Aviation Australia Pty Ltd [2013] QSC 121, [24] (McMurdo J).
[225] Consequences of nondisclosure go to top
Where no valid request for disclosure of a document is made under r 221, r 225(1)(a) does not operate to inhibit the tendering of such a document in evidence: Fribance v Hall Contracting Pty Ltd [2001] 1 Qd R 11, 13 (Fryberg J).
[226] Certificate by solicitor go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[227] Production of documents at trial go to top
The obligation to disclose necessarily carries with it the implied undertaking not to disclose documents which have been created by that party to look like they are genuine documents when they are not. Breach of such an undertaking strikes at the heart of the process of disclosure which is meant to ensure that each party is fully informed of the strengths and weaknesses of the case against them. If a party were to deliberately falsify documents and then disclose them as if they were genuine, it would be a very serious breach of the implied undertaking: City Hall Albury Wodonga Pty Ltd v Chicago Investments Pty Ltd [2006] QSC 31, [15] (Atkinson J).
The addition of the qualifying words "as relevant and as being what it purports to be" was merely to overcome what in a substantial number of cases are threshold obstacles to the reception of a document by providing for the two presumptions based on disclosure of the document. But passing across those thresholds, though necessary, was not intended to be sufficient: the question may still arise whether, accepting that those assumptions apply to a document, the document may still not properly be received: Tyler v Custom Credit Corporation Ltd (in liq) [2001] QSC 495, [32]-[33] (Muir J), citing Equuscorp Pty Ltd v Rural Finance Pty Ltd (Unreported, Queensland Supreme Court, Helman J, 14 September 2001).
Division 2--Interrogatories
[228] Entitlement to deliver interrogatories go to top
Interrogatories are appropriate where a party does not have knowledge of the facts necessary to advance his case: Cross v Qld Rugby Football Union [2001] QSC 173, [18] (Chesterman J).
[229] Delivery of interrogatories go to top
Rule 229(1)(b) is not limited to the issues already defined in existing pleadings. The Court is empowered to authorise interrogation for both identity and information discovery: Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd [2004] QSC 63, [21]-[22] (Douglas J).
[230] Granting of leave to deliver interrogatories go to top
An application for leave to deliver interrogatories may be made ex parte, although the Court may exercise its discretion to require notice to be provided to the party to be interrogated: Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd [2004] 2 Qd R 422, [1] (Douglas J).
Orders should be made under r 230(1)(b) in favour of the applicant in circumstances in which they would assist it to decide whether and how to proceed with the existing litigation and whether it will facilitate the just and expeditious resolution of the real issues in the case at a minimum of expense: Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd [2004] 2 Qd R 422, [23] (Douglas J).
Rule 230 confers a discretion which leaves it to the good sense of the judge to decide in a particular case whether interrogatories should be allowed. The fact that a simple and cheap alternative means of obtaining the information exists is clearly a most relevant factor in the exercise of the discretion but, beyond that, the Rule does not appear to allow generalisations about the circumstances in which it will be appropriate to grant leave: Cross v Qld Rugby Football Union & Anor [2001] QSC 173, [17] (Chesterman J).
Interrogatories will not be allowed where the questions go to extraneous or irrelevant matters, sometimes described as “fishing expeditions”, or which ask hypothetical questions. Similarly, interrogatories that go only to establish the decision maker’s understanding of the law or her opinions as to her own compliance with procedures will not be allowed since these are matters for the Court’s determination: Tientjes v Chief Executive, Department of Corrective Services [2004] QSC 100, [13] (Jones J).
A fact that is known and not disputed, or has been established on the evidence in previous proceedings (in the case of an appeal) and not disputed, cannot be the subject of interrogatories: Tientjes v Chief Executive, Department of Corrective Services [2004] QSC 100, [17] (Jones J).
An interrogatory will be disallowed if the form of question assumes a fact which has not been admitted by the party being interrogated:Tientjes v Chief Executive, Department of Corrective Services [2004] QSC 100, [19] (Jones J).
[231] Answering interrogatories go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[232] Statement in answer to interrogatories go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[233] Grounds for objection to answering interrogatories go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[234] Unnecessary interrogatories go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[235] Identity of individual by whom verifying affidavit to be made go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[236] Failure to answer interrogatory go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[237] Failure to comply with court order go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[238] Tendering answers go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 3--General
[239] Public interest considerations go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[240] Service on solicitors of disclosure orders go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[241] Costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[242] Notice requiring non-party disclosure go to top
Rule 242(2) applies only when the forensic purpose of a notice under r 242(1) is the proof of a matter in the document. It has no application where, for example, the purpose of seeking non-party disclosure is to obtain information leading to further enquiries or to found cross examination, nor is it to be construed as limiting r 242(1) to cases where documents are required to prove some matter in them: TSPD Pty Ltd v Resortrez Pty Ltd [2008] QSC 1, [10] (Fryberg J).
[243] Form and service of notice go to top
Rule 243(1)(b) specifically requires the notice to state the relevant “allegation in issue in the pleadings”. That necessarily calls for the party issuing the notice to distil from the pleadings, and articulate in the form of a statement, the “allegation in issue” about which it is said the document held by the third party is directly relevant. This requires something more than the issuing party simply referring the recipient to paragraphs in the pleadings. A non-party, on whom a notice of non-party disclosure is served, should not be put in the position of having to interpret pleadings in an attempt to divine the allegations which the issuing party contends are at issue and about which the non-party’s documents are supposed to be directly relevant: [2009] Qd R 1 [2008] QSC 193, [33] (Daubney J).
Failure to comply with r 243(2) by not serving persons affected by a notice of non-party disclosure prior to service on the respondent is an irregularity within r 371(1): Westsand Pty Ltd v Johnson (Unreported, Queensland Supreme Court, 15 November 1999), [6] (Wilson J).
Rule 243(2) recognises the intrusion involved in inspecting a non-party's documents and the fact that persons may have a legitimate ground to object which must be taken account of as well as legitimate claims of the party to obtain information relevant to the action and the wider public interest in the due administration of justice. The provision relating to the contents of the notice require an applicant to restrict the ambit of disclosure to documents directly related to allegations in issue in the pleading and thereby relieves the non-party of the oppressive need to make a judgment as to which of his documents may relate to an issue in the pleadings: Leighton Contractors Pty Ltd v Western Metals Resources Ltd [2001] 1 Qd R 261; [2007] QSC 27, [10] (Mackenzie J).
[244] Others affected by notice go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[245] Objection to disclosure go to top
In relation to r 245(4)(f), mere likelihood that production of documents would prejudice a defendant’s prospects of success in a trial would not be a valid basis for objection: CSR Ltd v Casaron Pty Ltd [2003] QSC 126, [2] (Mackenzie J).
The right of a party to object to a notice given by another party to a non-party who may or may not be disposed to object is subject to leave being given and must be closely confined to ensure that it does not become a standard ploy in litigation: CSR Ltd v Casaron Pty Ltd [2003] QSC 126, [6] (Mackenzie J).
In a case where documents are described by reference to a class, a notice of non-party disclosure would be more likely to survive objection based on r 245(4)(c) if it described documents by reference to contents demonstrating relevance to an issue than if it defined the class by reference to a tendency to prove facts relating to an issue: CSR Ltd v Casaron Pty Ltd [2003] QSC 126, [6] (Mackenzie J).
Relevance to the proceeding
The question is not whether the allegations in the notice of non-party disclosure are directly relevant. It is whether the documents required to be produced are directly relevant to the allegations: Chenoweth v ING Australia Ltd [2004] QSC 143, [7] (Mackenzie J).
Standing requirements
Pursuant to r 367, the court can make a direction limiting the disclosure which is to be made in compliance with a notice of non-party disclosure, if there is good reason to do so, whether or not r 245(2) is engaged: Cassimatis v Axis Specialty Europe Ltd [2013] QSC 237, [10], [11] (Jackson J).
Confidential nature of documents
A party gaining access to a document pursuant to a notice of non-party disclosure is subject to an implied undertaking not to use it except for the purpose of the litigation: Westsand Pty Ltd v Johnson (Unreported, Qld Supreme Court, 15 November 1999), [14] (Wilson J).
Rule 245(4)(e) provides a discretionary ground for objection to the production of some or all of the documents mentioned in a notice of non-party disclosure. It is not an absolute bar: Cassimatis v Axis Speciality Europe Ltd [2013] QSC 237, [21] (Jackson J).
[246] Objection stays notice go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[247] Courts decision about objection go to top
Costs of objection
In circumstances where the Court determines that the respondent has raised valid objections prior to the filing of an application under r 247, namely an inability to identify the documents to be disclosed due to the non-specificity of the notice, and the applicant has persisted with the application, the Court may order the applicant to pay the respondent’s costs: Chenoweth v ING Australia Ltd [2004] QSC 143, [16] (Mackenzie J).
[248] Production and copying of documents go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[249] Costs of production go to top
The purpose of r 249 is to provide reasonable monetary compensation for the burden incurred by the non-party in complying with a notice of non-party disclosure and to provide a mechanism for resolving any dispute about what is reasonable in the circumstances: NJH Pty Ltd v Billabong International Limited [2010] QSC 239, [16] (Wilson J).
Whether or not the respondent to a notice of non-party disclosure is a “party” within the meaning of Chapter 17A, r 249 does not require it to serve a “cost statement in the approved form”. A written notice of the respondent’s reasonable costs and expenses would suffice: NJH Pty Ltd v Billabong International Limited [2010] QSC 239, [22] (Wilson J).