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[2012] QSC 179
General information, not legal advice.
Supreme Court of Queensland
2012-06-22
McMurdo J
Original judgment source is linked above.
[1] The plaintiffs have requested the first and third defendants to produce certain documents in reliance upon r 222 of the Uniform Civil Procedure Rules 1999 (Qld). These are said to be documents mentioned in affidavits filed on behalf of the first and third defendants. The plaintiffs seek orders for the production of these documents and the provision of copies of them. The respondents say that the documents requested have not been "mentioned" in the sense required for r 222.
[2] It is common ground that the rule is engaged only where there is a "direct allusion" to a specific document and an inferred or implied reference is insufficient: see, for example, the discussion by Margaret Wilson J in GSM (Operations) Pty Ltd v Suwenda. Her Honour there referred to the judgment of Rix LJ, discussing the equivalent rule in England, in Rubin v Expandable Ltd. I respectfully adopt this passage from that judgment:
"24. [T]he expression 'mentioned' is as general as could be. This is not to my mind intended to be a difficult test. The document in question does not have to be relied on, or referred to in any particular way for any particular purpose, in order to be mentioned. ... The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important informal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to require to permit its inspection, and the other parties should be entitled to its inspection. What in such circumstances is the virtue of coyness?"[3]
[3] I go then to the documents which are sought by this application, narrowed as it has been by the supplementary written submissions filed on behalf of the plaintiffs. The first are certain documents referred to in parts of paragraph 29 of the affidavit of E A Jacques, affirmed 23 September 2011. Those documents are mentioned in her affidavit. They are specifically referred to, although each is not identified by, for example, a certain date. They are identified as documents which were brought to a certain meeting and which were explained in the course of that meeting. They are specific documents and were properly requested under r 222.
[4] Similarly, the documents the subject of paragraph 82 of that affidavit are documents mentioned in that affidavit in the required sense.
[5] The other documents sought are referred to in paragraphs 97, 99, 123 and 217 of the affidavit of the third defendant, affirmed 3 November 2010. The document the subject of paragraph 217 might have been described as the document referred to at paragraph 216 but clearly it is the same document between the two paragraphs. In my view, the plaintiffs are correct: the documents sought are there mentioned. They do not have to be referred to in any particular way in order to be mentioned.
[6] The order will be as proposed at exhibit RWB50 of the affidavit of Mr Barnes filed on 17 May 2012. That includes an order for costs against the first and third defendants. The plaintiffs gave some ground after their application was filed but their application was necessary nevertheless.
[3] [2008] EWCA Civ 59; [2008] 1 WLR 1099 at 1108.
Kado
Taisei Kanko Australia Pty Ltd [2012] QSC 179