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What do I have to Disclose?

If you are party to civil litigation proceedings then at some point along the way you will have to provide the other party with a ‘disclosure’ of documents.

For more information on when that occurs see our dedicated civil litigation page.

What does disclosure mean?

You have a positive duty to disclose to the other side ALL the documents in your possession or control that are directly relevant to the issues that are in dispute.

That is, you MUST make disclosure in the proceedings.  Contrary to what you may see on TV or in movies, you cannot hide a document from the other side until trial or deliberately withhold documents because they hurt your case.

Whilst the duty to disclose usually happens at a certain stage in the legal proceedings it does not stop until the trial ends.  So any new documents created or old documents you happen to find later on must also be disclosed to the other side as soon as possible after you discover them.

What is a document?

The definition of what comprises a ‘document’ for the purpose of legal proceedings is likely wider than you think. A document includes:

  • Any paper or other material on which there is writing;
  • Any paper or other material on which there are marks, figures, symbols or perforations;
  • Any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced; and
  • Any file that is in electronic form.

What is in my possession or control?

Just because you don’t have the document to hand or didn’t create it doesn’t mean you escape the duty to disclose it.  You may need to go to some effort to obtain it.  A document is in your ‘possession or control’ even if;

  • You did not create the document but have possession of it;
  • You only possess or control a copy of the document (i.e you don’t have the original); or
  • You don’t have physical possession but are able to retrieve the document from a third party by directing them to give you the document (for example, bank/credit card statements).

What is a relevant document?

Whilst it may go against your natural instincts, a document is ‘relevant’ if;

  • It can be used to help prove your case against the other side; or
  • It can be used to disprove your case against the other side.

That is, it is any document that is good for you and bad for you for a particular issue in the legal proceedings.  Remember, if you both admit that something happened then there is no need to disclose documents related to that thing, the court will accept the joint admission that the thing di happen, purely for the purpose of the legal proceedings.

How do you perform disclosure?

In Queensland, you can disclose a document a number of ways.  The simplest, is to simply send the other side a copy of every document you want to disclose.

However, the most usual way disclosure is performed is with the production of a list of documents that you complete and issue to the other side. They will then reply asking you to provide a copy of the particular documents in the list that they wish for you to disclose to them.

The Queensland Court’s have produced a basic template list of documents for use by parties which can be downloaded here.

How can we help?

We only deal with civil claims and therefore deal with disclosure day in day out.  If we’re engaged to deal with your civil litigation then we obviously perform disclosure on your behalf, but if you are trying to run your own case or have a question on relevance or procedure we can always help on a piecemeal basis.

Feel free to call us or make an appointment to talk about your issues and find out why you might want to choose us to help you with your legal issues.


DISCLAIMER:  The above article was written at a specific point in time in the past and is provided as general guidance only.  It is not intended to be specific legal advice to any person’s particular circumstances who may be reading it.  We do not recommend you use this article as a replacement for obtaining proper legal advice on your issue and encourage anyone reading the article to obtain legal advice to ensure the above information and guidance remains valid and suits your particular circumstance.  In our experience, there is no ‘one size fits all’ to legal problems!

IMPORTANT NOTICE

Unfortunately, we have had to close our physical office during the Covid-19 crisis which has caused extraordinary disruption with all staff needing to work from home (as best they can).

As a father with small children that both suffer with respiratory illnesses, we are keeping our children home.  It will be very difficult for our office to run effectively for the foreseeable future and I appreciate your patience at this time.

Given the difficulties, we are temporarily limiting our home office 'core hours' to 10.00am to 2.00pm, Monday to Friday for phone calls and 'ordinary' working hours.

Please do not expect that we will be able to address any enquiry or phone call outside of those times and we will get back to you and address your enquiry as soon as possible.

We hope you appreciate the situation we are in and I certainly apologise for any inconvenience or delay this may cause.

If your email or enquiry is genuinely urgent please call me on my mobile 0420 308151 and I will answer if I am free but otherwise leave a voicemail alerting me to the urgency of the matter.

We wish you well and hope you stay safe during this unprecedented time.

Kind regards,

Michael Turner