Erskine v McDowell

[2001] QDC 192

DISTRICT COURT OF QUEENSLAND

CITATION:

Erskine v. McDowall [2001] QDC 192

PARTIES:

WARWICK DOUGLAS ERSKINE                   (Plaintiff)
And
COLLEEN PATRICIA McDOWALL           (Defendant)

FILE NO/S:

D187 of 2000

DIVISION:

Applications

PROCEEDING:

Application for disclosure

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

3 September 2001

DELIVERED AT:

Maroochydore

HEARING DATE:

16 July 2001

JUDGE:

Judge J.M. Robertson

ORDERS:

(1)   I direct the defendant to make the necessary application under the Freedom of Information Act to obtain copies of all forms signed by the defendant and lodged with Centrelink and/or the Department of Social Security during the period September 1997 to January 2000, and upon obtaining copies to disclose those parts of the documents containing any reference to the defendant’s domestic living arrangements and/or whether or not the defendant was cohabitating with another person in a de facto relationship during this period.

(2)   I reserve the costs of the application to the trial Judge.

CATCHWORDS:

PRACTICE – DISCLOSURE – Plaintiff seeks order requiring defendant to make application to Government Departments under Freedom of Information Act 1982 (Cth) for copies of documents in their possession – whether those documents are “under the control of” the defendant – meaning of “control”

Cases cited:

Taylor v. Rundell (1841) CR and PH 104
Taylor v. Santos Ltd (1998) 71 SASR 434
Theodore v. Australian Postal Commission [1988] VR 272
Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627

Statutes considered:
Uniform Civil Procedure Rules, rr 211, 223(4), 367
Property Law Act 1974, ss 38, 287
Social Security (Administration) Act 1999 (Cth), s 207
Freedom of Information Act 1982 (Cth)

COUNSEL:

G.D. Garrick (for the plaintiff)
P.E. Firmin, Solicitor (for the defendant)

SOLICITORS:

Moroney Thiele (for the plaintiff)
Gilshenan and Luton (for the defendant)

1. This application concerns the duty of disclosure imposed upon parties to a proceeding by r 211 UCPR:

“211(1) A party to a proceeding has a duty to disclose to each other party each document –

(a)   in the possession or under the control of the first 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.

(2)     The duty of disclosure continues until the proceeding is decided.

(3)     An allegation remains in issue until it is admitted, withdrawn, struck out or otherwise disposed of.”

1. The plaintiff seeks an order that the defendant disclose, by delivering to the plaintiff copies of all forms signed by the defendant and lodged with Centrelink and/or the Department of Social Security during the period September 1997 to January 2000 containing any reference to the defendant’s domestic living arrangements and/or whether or not the defendant was cohabitating with another person in a de facto relationship during this period. The parties have resolved between themselves that part of the application relating to disclosure of documents set out in paragraphs 1(1) and (b) of the application.

1. An order for disclosure of documents by delivery to another person may only be…