Prospective plaintiffs in Queensland now have a clear legislative basis to apply to the Court for preliminary disclosure following recent amendments to the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).
The long-awaited amendments put Queensland in step with the Federal, New South Wales and Victorian jurisdictions that all have well-established preliminary disclosure regimes enshrined in legislation.
What is preliminary disclosure?
Preliminary disclosure is a particular form of disclosure. It occurs before the start of substantive proceedings and is distinct from the disclosure process between parties that generally follows pleadings. It gives a prospective plaintiff access to certain information to be able to assess whether the cost and risk of litigation is worthwhile.
Until recently, Queensland litigants’ recourse to pre-action disclosure and information-gathering was limited.
Pursuant to the Supreme Court’s auxiliary jurisdiction in equity, a potential plaintiff could compel certain documents from another person who had been “mixed up” in the wrongful acts of a prospective defendant. The documents could not be sought from any other person, even those who could provide them. Further, the information that could be obtained was limited to that regarding the identity and/or whereabouts of a prospective defendant.[i]
Potential litigants could also invoke rule 229(1)(b) of the UCPR. This rule allows the delivery of interrogatories on a person in order to help decide whether that person would be an appropriate party to a proposed proceeding. It is akin to an application for pre-action discovery to identify a defendant, but it does not provide for the production of documents.
New Queensland regime
Queensland’s new preliminary disclosure regime commenced on 10 December 2021. It is contained in the new Chapter 7, Part 1 of the UCPR, which was inserted pursuant to the Uniform Civil Procedure (Preliminary Disclosure) Amendment Rule 2021 (Qld).
Broadly, two categories of documents may be sought as preliminary disclosure: A. documents relating to the identity of whereabouts of a prospective
B. documents that will assist in making a decision as to whether to
commence a proceeding.
An order requiring a person to give evidence to the Court about a person’s identity or whereabouts may also be made.
The regime is not a “free-for-all”, and certain conditions need to be met before preliminary disclosure can be ordered. For instance, the party seeking the disclosure must demonstrate that it may have a right to relief against a prospective defendant. Other conditions will also apply, depending on the basis for the application.
Costs considerations will need to be borne in mind. The party seeking the disclosure may be ordered to give security for the costs and expenses of the person who is ordered to give the disclosure. Likewise, the person ordered to give the disclosure may also be able to seek the costs of complying with the order.
The preliminary disclosure regime only applies to the Supreme Court of Queensland. That could mean one of two things. First, it could mean that the application for preliminary disclosure must be made to the Supreme Court, even if the substantive litigation will be commenced, or is on foot, in another Queensland court. Otherwise, it could mean that the regime only applies to substantive proceedings that will be brought, or are on foot, in the Supreme Court. The ambiguity arising from these conflicting interpretations will need to be resolved in due course.
Queensland compared to other Australian jurisdictions
While Queensland’s new preliminary disclosure regime brings it in step with those in other Australian jurisdictions, and the procedure is similar, there are material differences. It should not be assumed in any case that decisions from those jurisdictions will automatically apply in the interpretation of the rules in Chapter 7, Part 1 of the UCPR.
For instance, the Queensland regime appears to have been modelled, broadly, off the regime that applies in the Federal Court of Australia. The similarities between the two are evident and, for that reason, Federal Court decisions considering the equivalent rules in UCPR may be of assistance. However, the rules that apply in the Federal Court also share some similarities with those in New South Wales and Victoria, so careful consideration will be required in disentangling the similarities and differences with the UCPR.