The consequences of a failure to disclose

Limelight Articles

Limelight 02/22

The consequences of a failure to disclose

Authors, Brett Solomon , Mitchell Hauser , Isla McLeod

A recent decision of the District Court of Queensland has reaffirmed the importance of parties completing full disclosure during the pre-court procedures of the Personal Injuries Proceedings Act 2002 (Qld) (Act).

In Eyles v Sydney Skydivers Pty Ltd [2022] QDC 1, Chief Judge Devereaux SC ruled that a defendant was precluded from relying on certain material at trial that had not been disclosed during the Act’s pre-court procedures, despite the absence of any request from the plaintiff and the dispensing of certificates of readiness.

Obligations under the Act

The explanatory notes to the Personal Injuries Proceedings Bill 2002 provide that the “clear purpose of [the Act] … is to put the parties in the position where they have enough information to assess liability and quantum in relation to a claim”.

This is enforced in the Act by a claimant’s obligations under section 22 of the Act, (which requires the claimant to disclose all reports and documents “about the incident”, and to provide information about the incident which is reasonably requested by a respondent), and a respondent’s obligations under section 27.

The two limbs of section 27 require disclosure of certain documents relevant to the matter. This includes reports and documentary material about the incident, and if asked by the claimant, disclosure of information about the circumstances of, or reasons for the incident (section 27(1)(b)).

The Act requires that prior to a compulsory conference the parties must provide a certificate of readiness confirming that “the party has fully complied with the party’s obligations to give to the other parties material required to be given to the parties under this act” (section 37(2)(d)).

Section 32(2) of the Act sets out the consequences of a party failing to give documents as required: those documents cannot be used by the party that failed to disclose them in a subsequent court proceeding, or the deciding of the claim unless the court orders otherwise.

Background

In Eyles v Sydney Skydivers, the plaintiff sustained injuries when landing during a skydiving course. Following the pre-court procedures under the Act, the matter became litigated in early January 2019. The claim and statement of claim filed by the plaintiff alleged both breach of contract and negligence on the part of the defendant’s employees.

Subsequent to filing its defence, the defendant served a list of documents on the plaintiff. That list contained certain documents that had not been previously disclosed before the compulsory conference.

By application, the plaintiff sought to preclude the defendant from relying on these “new” documents under 32(2). The plaintiff conceded that no request pursuant to section 27(1)(b) was ever made of the defendant, however, and as such the application concerned only the interpretation of section 27(1)(a).

Each of the contentious documents are laid out in some detail in the decision, but can be summarised as follows:

Document 26: a 9-page questionnaire titled “AFF Course Review Form of Airlie Beach Skydivers” which was filled out by the plaintiff;
Document 30: an Australian Parachute Federation Waiver;
Document 31: a skydive Airlie Beach Club Waiver, which referred to the plaintiff by name and stated his agreement to be bound by the terms of the contact;
Document 32: an Australian Parachute Federation waiver outlining some dangers of parachuting and stating that it is done at the applicant’s own risk;
Document 34: details of the plaintiff’s membership with the Australian Parachute Federation Ltd; and
Document 38: a handwritten document titled “Sydney Skydivers Reserve Log”

(together the documents).

The plaintiff submitted that the defendant should be precluded from relying on all of the documents in the proceedings due to section 32(2) of for the Act. The defendant argued that it was not required to disclose the documents under section 27(1)(a), and alternatively called on the court to use its discretion under section 32(2) to allow it to use the documents at trial, despite any failure to comply with 27(1)(a).

Decision

While the majority of the documents related to the contractual relationship between the parties, including the waivers relied upon by the defendant, Document 26 was a nine-page questionnaire in which the plaintiff correctly answered questions about foot and leg position during landing. His Honour found that this questionnaire was captured by section 27(1)(a), as the information contained within it related to material about the incident and was directly relevant to a matter at issue, namely, whether the plaintiff had acted in contravention of his training and caused or contributed to his injury in doing so. As such, Document 26 was held to be documentary material “about the incident” and therefore came within the scope of section 27(1)(a)(i).

With regards to the remainder of the documents, his Honour considered that, although some might be considered to be directly relevant to a matter in issue in the claim, and therefore disclosable in the litigated proceedings, they were not “about the incident” and so the failure to disclose them in the pre-court phase of the claim did not offend section 27(1)(a).

In deciding that those documents did not need to be disclosed pursuant to section 27(1)(a), his Honour referred to the views of Jerrad J in Haug v Jupiters Limited[1] who remarked that the obligation is “not as broad as an obligation to give claimant copies of documents that are directly relevant to a matter in issue in the claim, where those are not documents about the incident”.

As such, the defendant was entitled to rely upon each of the documents, save for Document 26, the questionnaire.

In terms of the defendant’s application for the court to exercise its discretion to allow it to use the documents at trial as conferred by section 32(2), his Honour held, “the interests of justice do not require the defendant to be exempt from the application of section. 32”.

Implications

The decision highlights the fact that documents can be relevant to a matter in dispute, but not about the incident, and the importance of requests made under section 27(1)(b), which can cause such documents to become discoverable.

Even where no request for information has been made by a plaintiff, and where a certificate of readiness has been dispensed with under section 36(4) of the Act, a defendant must still ensure that all documents about the incident that it intends to rely on at trial have been disclosed as required under section 27 during the pre-court procedures. Although the court has the discretion to allow a defendant to rely on a document that it has failed to disclosure to avoid injustice, it will not always do so in all circumstances.

[1] Haug v Jupiters Limited [2008] 1 Qd R 276.

Brett Solomon Principal, Brisbane Direct: +61 7 3157 1910 bsolomon@gclegal.com.au

Mitchell Hauser Special Counsel, Brisbane Direct: +61 7 3157 1905 mhauser@gclegal.com.au

This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.