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UNIFORM CIVIL PROCEDURE (PRELIMINARY DISCLOSURE) AMENDMENT RULE 2021 (QLD)

1.         INTRODUCTION

On 9 December 2021, the Uniform Civil Procedure (Preliminary Disclosure) Amendment Rule 2021 (the “Amendment Rule”) was assented to by the Governor in Council, and subsequently notified on the Queensland legislation website on 10 December. The Amendment Rule introduces a new chapter 7, part 1 to the Uniform Civil Procedure Rules 1999 (“UCPR”), which comprises the rules of court for civil law matters in Queensland.

The amendment provides for preliminary disclosure orders in the Supreme Court. That is, the new chapter 7, part 1 provides a mechanism by which a prospective applicant can obtain relevant documents prior to the commencement of substantive proceedings.

The purpose of the Amendment Rule is to offer prospective applicants an opportunity to assess the merits of a potential claim and/or identify the proper defendant before commencing what is often a lengthy and expensive litigation, thereby assisting in the effective and expeditious completion of meritorious claims against the proper defendant.

2.         ORDERS TO ASCERTAIN ID OR WHEREABOUTS OF PROSPECTIVE DEFENDANT

Where an applicant may have a right to relief against a prospective defendant, but is unable to sufficiently ascertain through reasonable inquiries the identity or whereabouts of said defendant, sub-section 208C(2) grants the court the discretion to order a third party to:

  • Attend to give evidence relating to a prospective defendant’s identify or whereabouts; or
  • Produce a document or thing relating to the identity or whereabouts of the prospective defendant.

3.         ORDERS FOR PRELIMINARY DISCLOSURE

Where an applicant may have a right to relief against a prospective defendant, but it is impracticable to start a proceeding against them without reference to a document, a court may order that the prospective defendant to disclose or produce said document. Notably, to exercise this discretion, the court must be satisfied that:

  • there exists an objective likelihood that the prospective defendant has, or is likely to have, possession or control of the documents; and
  • inspection of the document(s) would assist the applicant to make the decision to start the proceedings.

4.         PROCEDURAL REQUIREMENTS

An application for orders under rule 208C(2) and 208D(2)  must be supported by an affidavit outlining the facts relied upon, and the information, document or thing sought. Both the application and affidavit must also be personally served on the ‘other person’.

5.         PRACTICAL APPLICATION – EXAMPLES

Example 1: in cases of misappropriated funds, information to identify the recipient and location of the monies and the accounts involved in the transfer of said funds.

Example 2: in a potential defamatory matter, audio or audio-visual recordings, meeting minutes or other records of the alleged defamatory publication.

Example 3: in cases of intentional torts (including assault, battery, false imprisonment, intentional infliction of emotional distress, trespass to land or chattels, and conversion), information, documents and records which identity the wrongdoer(s) and other information which may assist the applicant to determine who to initiate proceedings against.

If you have any questions concerning the availability of preliminary disclosure, or require any legal assistance, please do not hesitate to contact us on (07) 3252 0011.

This article was written by Courtney Linton

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