AP v Rd

Case [2016] QDC 49

DISTRICT COURT OF QUEENSLAND

CITATION:

AP v RD [2016] QDC 49

PARTIES:

AP*

(applicant/plaintiff)

v

RD*

(respondent/defendant)

FILE NO:

3818 of 2014

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

18 March 2016

DELIVERED AT:

Maroochydore

HEARING DATE:

24 February 2016

JUDGE:

Long SC DCJ

ORDER:

1.   The child, [*], give any evidence-in-chief in this proceeding by way of affidavit, to be filed within 60 days.

2.   No order as to costs.

CATCHWORDS:

·     PROCEDURE – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – DISCRETION OF COURT AND POWER TO ORDER – Where applicant seeks court order for disclosure of documents through the respondent – Where some documents do not exist or never have existed – Where there is an absence of possession or control by the respondent

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – DIRECTIONS – Whether appropriate to direct the respondent to seek to obtain a copy of a document – Whether appropriate to direct the respondent to provide any admissible documents containing statements of a child witness and upon which reliance is intended

LEGISLATION:

Uniform Civil Procedure Rules 1999 ss 5, 211, 211(1), 211(1)(a), 212(1), 212(2), 221(1), 223, 223(1), 223(2), 223(4), 223(4)(a), 223(4)(b), 223(4)(b)(ii), 367 and 367(3)(j)

Defamation Act 2005 ss 25 and 30

Evidence Act 1997 ss 17, 18, 92, 93A and 101

CASES:

Birtwell v Sands [2012] QSC 396

Breen v Williams (1996) 186 CLR 71

Company Solutions (Aust) Pty Limited & Keppel Cairncross Shipyard Limited (in liq) & Ors [2004] QSC 379

DPP v Brooks [1974] AC 862

Erskine v McDowall [2001] QDC 192

Equuscorp Pty Ltd v Glengallen Investments Pty Ltd [2002] QCA 380

R v Griffin [1998] 1 Qd R 659

He Kaw Teh v R (1985) 157 CLR 523

McIlwraith McEacharn Operations Ltd v CE Heath Underwriting and Insurance (Aust) Ltd (No. 2) [1995] 1 Qd R 363

Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants and Bars Pty Ltd [2001] 1 Qd R 276

Psalidis & Anor v Norwich Union Life Australia Ltd [2009] VSC 417

R v Boyesen [1982] AC 768

Robson v REB Engineering Pty Ltd 1997 2 Qd R 102

Rubin v Bank of Queensland [2010] QSC 175

Sabre Corporation Pty Ltd v Russ Kalvin’s Hair Care Co & Others (1993) 46 FCR 428

Taylor v Santos Ltd (1998) 71 SASR 434

Workcover Queensland v Amaca Pty Limited and Anor [2011] QSC 282

Xstrata Qld Ltd v Santos Ltd [2005] QSC 323

COUNSEL:

Stoker, AJ for the applicant/plaintiff

Gerber, SM for the respondent/defendant

SOLICITORS:

Mills Oakley Lawyers for the applicant/plaintiff

McCormick Lawyers for the respondent/defendant

Introduction

  1. In this matter there is an application made in a proceeding by the plaintiff, for orders relating to disclosure of material by the defendant.

  1. In the substantive proceeding, the plaintiff seeks an injunction and damages in relation to alleged defamatory publications, by telephonic communications with, in the first instance, an employee and in the second instance, the head…

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Details
AGLC
AP v Rd [2016] QDC 49
Case
[2016] QDC 49
Decision Date

CaseChat Overview and Summary

The proceedings in AP v Rd involved an application for discovery of documents, with the applicant seeking the disclosure of certain documents through the respondent. The matter was before the court due to the applicant's contention that some documents did not exist or had never existed, and that the respondent lacked possession or control over them. The court was tasked with determining the appropriate course of action regarding the discovery of these documents, particularly those related to statements of a child witness.

The central legal issue before the court was whether it was appropriate to direct the respondent to seek a copy of a specific document, and whether it was suitable to instruct the respondent to provide any admissible documents containing statements of a child witness upon which reliance was intended. The court needed to balance the principles of open justice and the protection of vulnerable witnesses, particularly children, in its decision-making process.

In its decision, the court exercised its discretion under the relevant rules of court to order the child to provide evidence-in-chief by way of affidavit within 60 days. The court determined that this approach would be more appropriate than directing the respondent to obtain a copy of a document that was alleged not to exist or directing the respondent to provide documents that may or may not be in their possession. The court did not make an order as to costs, reflecting the specific circumstances and focus of the case.

The final orders included a direction for the child to give evidence-in-chief by way of affidavit within 60 days, and no order as to costs. This decision highlights the court's consideration of procedural fairness, the protection of vulnerable witnesses, and the practicalities of document disclosure in family law proceedings.

Orders

Orders of the court

1. The child, [*], give any evidence-in-chief in this proceeding by way of affidavit, to be filed within 60 days.

2. No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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