Shannon v Park Equipment Pty Ltd
[2006] QSC 284
•5 October 2006
SUPREME COURT OF QUEENSLAND
CITATION:
Shannon & Anor v Park Equipment Pty Ltd [2006] QSC 284
PARTIES:
PHILIP McCOLL SHANNON
(first plaintiff/applicant)
AND
ROSEMARIE JANET SHANNON
(second plaintiff/applicant)
v
PARK EQUIPMENT PTY LTD
(defendant/respondent)FILE NO/S:
BS6098 of 2005
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court Brisbane
DELIVERED ON:
5 October 2006
DELIVERED AT:
Brisbane
HEARING DATE:
5 July 2006
JUDGE:
Atkinson J
ORDER:
Application dismissed
CATCHWORDS:
PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GENERALLY – where the defendants submitted it was inconvenient to deliver the documents produced because of their number, size, quantity and volume pursuant to r 216(1)(a) – where the plaintiff submitted that regardless of the size, quantity of volume of the documents, the defendant was required to produce a list of those documents – where the rules provide that in the circumstances, disclosure may be effected by production – whether the defendants had satisfied the requirements by producing a list of the privileged documents
Uniform Civil Procedure Rules 1999 (Qld), rr 210, 211, 212(1), 214, 215, 216, 217, 223
Interchase Corporation Limited(in liq)v Grosvenor Hill (Queensland) Pty Ltd(No. 2) [1999] 1 Qd R 163, cited
COUNSEL:
P D Lane for the first and second plaintiffs
K Barlow for the defendantSOLICITORS:
Cooper Grace Ward for the first and second plaintiffs
Synkronos Legal for the defendant
ATKINSON J:This was an application for disclosure pursuant to r 223 of the Uniform Civil Procedure Rules 1999 (UCPR). The rules relating to the duty of parties to civil litigation to disclose relevant documents to each other are found in Part 1 of Chapter 7 of the UCPR. These rules represented a significant change to the rules which had previously related to disclosure, an area of civil litigation which gave rise to much criticism as to the delays occasioned and the costs incurred by parties fulfilling the duties of disclosure.[1]
[1]Cairns BC “A New Discovery Regime for Queensland” (1995) 18 UQLJ 93.
The duty of disclosure is set out in r 211 which provides that a party to a proceeding has a duty to disclose to each other party, documents in the possession or under the control of the disclosing party which are directly relevant to an allegation in issue in the pleadings or if there are no pleadings, directly relevant to a matter in issue in the proceeding. Rule 212(1) sets out those documents to which the duty of disclosure does not apply which has served to narrow the duty of disclosure further. The duty of disclosure continues, however, until the proceeding is decided.
Rule 210 envisages two alternative methods of disclosure. It provides that disclosure will be by delivery or by production of documents in accordance with Part 1 of Chapter 7.
Disclosure by delivery
Rule 214 sets out the means of disclosure by delivery. It provides:
“Disclosure by delivery of list of documents and copies
(1)Subject to rules 216 and 223, a party to a proceeding performs the duty of disclosure by –
(a)delivering to the other parties in accordance with this part a list of the documents to which the duty relates and the documents in relation to which privilege from disclosure is claimed (the list of documents); and
(b)at a party’s request, delivering to the party copies of the documents mentioned in the list of documents, other than the documents in relation to which privilege from disclosure is claimed.
(2) The times for the deliveries are as follows –
(a)if an order for disclosure is made before the close of pleadings – the times stated in the order;
(b)if an application for a summary decision is made within 28 days after the close of pleadings and the proceeding is not entirely disposed of when the application is decided – within 28 days after the decision;
(c)otherwise – within 28 days after the close of pleadings.
(d)when any further pleading or amended pleading is delivered;
(e)if the first occasion on which a document comes into the possession or under the control of the party, or is located by the party, happens after a time mentioned in paragraph (a) to (c) – within 7 days after the occasion happens;
(f)if the party is asked in writing by another party to deliver a copy of a document – within 28 days after the request.”
Disclosure by production
Disclosure of documents by production applies in two circumstances. The first arises where a party receives disclosure by delivery under r 214. The receiving party may, pursuant to r 215, nevertheless require the disclosing party to produce specified original documents of which copies have been or are to be delivered. The second circumstance arises where it is not convenient for a party to deliver documents under r 214 because of the number, size, quantity or volume of the documents or some of the documents: see r 216(1)(a). The first circumstance arises at the behest of the receiving party and the second at the behest of the disclosing party.
When either of those circumstances arises, then the manner in which disclosure must take place is governed by r 216 and r 217 which provide:
“ Disclosure by inspection of documents
216 (1) This rule applies if –
(a)it is not convenient for a party to deliver documents under rule 214 because of the number, size, quantity or volume of the documents or some of the documents; or
(b)a requirement for production of documents is made of a party under rule 215.
(2)If this rule applies, the party must effect disclosure by –
(a)producing the documents for inspection at the time specified in rule 214(2); and
(b)notifying the other party in writing of a convenient place and time at which the documents may be inspected.
Procedure for disclosure by producing documents
217(1) This rule applies if a party discloses documents by producing them.
(2)The documents must be –
(a)contained together and arranged in a way making the documents easily accessible to, and capable of convenient inspection by, the party to whom the documents are produced; and
(b)identified in a way enabling particular documents to be retrieved easily on later occasions.
(3) The party producing the documents must –
(a)provide facilities (including mechanical and computerised facilities) for the inspection and copying of the documents; and
(b)make available a person who is able to explain the way the documents are arranged and help locate and identify particular documents or classes of documents; and
(c)provide a list of the documents for which the party claims privilege.
(4) The arrangement of the documents when in use –
(a)must not be disturbed more than is necessary to achieve substantial compliance with subrule (2); and
(b)if the party to whom the documents are produced for inspection so requires – must not be disturbed at all.
(5) For subrule (2), the documents may –
(a)be contained in files, folders or in another way; and
(b)be arranged –
(i)according to topic, class, category or allegation in issue; or
(ii)by an order or sequence; or
(iii)in another way; and
(c)be identified by a number, description or another way.
(6)The person made available under subrule (3)(b) must, if required by the person inspecting the documents –
(a)explain to the person the way the documents are arranged; and
(b)help the person locate and identify particular documents or classes of documents.”
When disclosure is by production rather than delivery because of either of the circumstances set out in r 216(1), then the only list which must be produced is the list referred to in r 217(3)(c), that is a list of the documents for which the party claims privilege. 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.
Court orders with regard to disclosure
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. Firstly, 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.[2]
[2]See Interchase Corporation Limited(in liq)v Grosvenor Hill (Queensland) Pty Ltd (No. 2) [1999] 1 Qd R 163 at 170.
Applying the UCPR to the case before me, the plaintiffs sought disclosure of a number of different classes of documents listed in the application. With some minor exceptions which are irrelevant for this purpose, neither party wished to argue that the documents sought were not directly relevant to an allegation in issue in the pleadings. However, the defendant said it had already given disclosure by production because it was inconvenient to deliver the documents so disclosed because of their number, size, quantity and volume (r 216(1)(a)). The plaintiffs submitted that regardless of the number, size, quantity or volume of the documents, the defendant was required to produce a list of those documents. However, that is not correct as a matter of law. If it is not convenient for the disclosing party to deliver documents, as is the case here, because of their number, size, quantity or volume, then disclosure may be effected by production. The only list then required is the list of privileged documents.
As the defendant has already given disclosure of the relevant documents by production, the application must be dismissed.
0
0
1