Further Disclosure and Non-Disclosure in Queensland

Understanding Rules 223–225 of the UCPR

The starting point is the general duty of disclosure under rule 211. A party must disclose each document in its possession or control that is directly relevant to an allegation in issue in the pleadings. The duty continues until the proceeding is decided.

Rules 223, 224 and 225 deal with what happens when the ordinary disclosure process does not work as it should.

Rule 223 allows the court to make targeted orders about the production, inspection or existence of documents. Rule 224 permits the court to relieve a party from some or all of its disclosure obligations. Rule 225 deals with the consequences of failing to disclose a document that should have been disclosed.

Read together, the rules give the court considerable control over disclosure. They are not confined to correcting default. Rule 223 also allows the court to direct that delivery, production or inspection be provided, not provided or deferred; rule 224 allows the court to confine an excessive disclosure exercise; and rule 225 imposes consequences where a party does not comply.

Further and Specific Disclosure Orders Under Rule 223

Orders the Court Can Make

Under rule 223(1), the court may order a party to disclose a document or a class of documents by:

• delivering a copy to another party; or
• producing the document for inspection.

The distinction can matter where the documents are voluminous, difficult to copy, commercially sensitive or held in a format that requires inspection in their original form.

An order may concern one identified document, such as a particular contract, or a properly defined class of documents. A class should be described with enough precision to allow the responding party to understand what must be searched for and to allow the court to assess its relevance.

A request for “all documents relating to the dispute” is unlikely to assist. It merely restates the general duty of disclosure. A more useful request might identify the document type, subject matter, author or recipient and relevant date range. For example, a party could seek internal emails exchanged between named employees during a specified period concerning the termination of a particular agreement.

Rule 223(2) addresses the common situation where a party says that requested documents do not exist or are no longer within its possession or control. The court may order that party to file and serve an affidavit stating:

• that the specified document or class of documents does not exist or has never existed; or
• the circumstances in which it ceased to exist or passed out of the party’s possession or control.

That affidavit is more than a procedural formality. It records the party’s sworn position about whether the documents exist and, where applicable, how they ceased to exist or left its possession or control. Depending on the evidence and the terms of the order, it may also explain the searches undertaken. A bare statement in correspondence that documents ‘cannot be located’ may not be enough where the surrounding evidence suggests that they should exist.

Orders to Provide, Withhold or Defer Disclosure

Rule 223(3) separately permits the court to order that delivery, production or inspection of a document or class of documents be provided, not provided or deferred. Unlike orders under rule 223(1) or (2), the text of rule 223(4) does not make its threshold conditions applicable to an order under rule 223(3). This power allows the court to control the timing and manner of disclosure, including by staging disclosure or postponing access where immediate disclosure is not appropriate.

When Will Further Disclosure Be Ordered?

A rule 223 order is not available merely because one party is dissatisfied with the documents received.

Under rule 223(4), an order for disclosure or an explanatory affidavit may be made only if:

1. there are special circumstances and the interests of justice require the order; or
2. there appears to be an objective likelihood that the duty of disclosure has not been complied with, or a specified document or class of documents exists or existed and has passed out of a party’s possession or control.

The expression “objective likelihood” requires some factual foundation. The applicant need not prove conclusively that a document exists before seeking an order for its disclosure. That would often be impossible. There must, however, be more than speculation.

In Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276; [1999] QCA 276 at [10], Pincus JA accepted that the UCPR permits a more flexible approach than the former discovery rules. An order may be justified where it would facilitate the just and expeditious resolution of the real issues. His Honour added an important qualification: ordinarily, there must be something more than mere suspicion before the court intervenes.

That principle remains the practical dividing line in many applications. An apparent gap in a sequence of emails, a reference in a disclosed document to an attachment that has not been produced, evidence that a particular report was commissioned, or the absence of records that would ordinarily be created in the course of a transaction may provide the necessary objective basis.

A belief that the opposing party “must have more documents” usually will not.

The documents sought must also have a genuine connection to the pleaded issues. Rule 223 should not be used to investigate a new case, search for an unpleaded allegation or impose a wide-ranging forensic audit on the other party.

In Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd & Anor [2022] QSC 49 at [132]–[133], the Supreme Court emphasised an approach directed towards documents of direct relevance that are likely to assist in determining the issues. That approach must remain proportionate, particularly where the documentary record is extensive.Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd

Special Circumstances and the Interests of Justice

Rule 223(4)(a) provides a separate basis for an order where special circumstances exist and the interests of justice require it.

This power is not necessarily confined to documents falling within the ordinary duty of disclosure. In Mishpocha Pty Ltd v Tyrepower Marketing (Qld) Limited & Anor (No 2) [2021] QSC 234 at [7], the Supreme Court recognised that an order under rule 223 may extend beyond the documents otherwise caught by the duty of disclosure where the applicable threshold in rule 223(4) is met.Mishpocha Pty Ltd v Tyrepower Marketing (Qld) Ltd (No 2)rule 223

The applicant must satisfy both parts of the test. Circumstances do not become “special” simply because a document would be useful. The court will consider the nature of the proceeding, the importance of the document, the reason it falls outside ordinary disclosure and whether production is needed to resolve the real controversy fairly.

The breadth of the discretion does not remove the need for a carefully framed order. A targeted application supported by evidence is more likely to succeed than an application expressed in broad categories and left for the court to refine.

Orders Concerning Missing or Destroyed Documents

A document may be relevant even though it no longer exists or is no longer held by the party that created it.

Rule 223(2) allows the court to require an affidavit explaining the position. Depending on the circumstances, the affidavit may need to address:

• whether the document ever existed;
• where and how searches were conducted;
• when it was last known to exist;
• who had custody of it;
• whether it was deleted, destroyed, transferred or archived;
• the applicable document-retention practices; and
• whether a copy may be held by another person.

The affidavit must provide reliable evidence about the relevant documents and the steps taken to locate them. It need not invariably be sworn by an officer of a corporate party. In Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2004] QSC 329 at [30], the Court held that a detailed affidavit from the defendant’s solicitor, who had taken charge of the relevant documents for the proceeding, adequately addressed the issues and that there was little practical benefit in requiring a similar affidavit from an officer of the defendant.Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board

An affidavit of this kind does not recreate a missing document. It can, however, expose an inadequate search, identify another source from which the document may be obtained or provide evidence relevant to later questions about costs, credibility or the consequences of destruction.

Privilege and Court Inspection of Documents

A specific disclosure application does not override legal professional privilege.

If privilege or another objection is raised, rule 223(5) permits the court to inspect the document to decide the objection. Inspection by the court does not mean that the document will be disclosed to the applicant. It allows the judge to determine whether the objection is properly made without first revealing the contents to the opposing party.

The parties should distinguish between a dispute about whether a document exists, a dispute about whether it is directly relevant and a claim that an otherwise disclosable document is privileged. Each issue calls for different evidence and, potentially, a different form of order.

Relief From Disclosure Under Rule 224

When Can a Party Be Relieved From Disclosure?

Rule 224(1) allows the court to relieve a party, either wholly or to a specified extent, from the duty of disclosure.

The rule is particularly relevant where literal compliance with the disclosure obligation would require a disproportionate exercise. Modern litigation may involve years of email, messaging platforms, cloud storage, accounting data and electronically generated records. The fact that documents can be searched electronically does not mean that every possible search is reasonable or useful.

Relief may be framed by reference to particular issues, custodians, document classes, date ranges or stages of the proceeding. The court may also adopt a staged approach so that potentially decisive documents are addressed first, with broader disclosure deferred until it becomes necessary.

A party seeking relief should provide evidence of the actual burden. General statements that disclosure would be “expensive” or “time-consuming” are weak. The court is better assisted by evidence identifying the volume of material, the systems to be searched, the estimated cost, the likely review time and the extent to which responsive documents can be isolated.

Factors Considered by the Court

Rule 224(2) identifies four considerations:

• the likely time, cost and inconvenience of disclosure compared with the amount involved in the proceeding;
• the relative importance of the issue to which the documents relate;
• the probable effect of disclosure or non-disclosure on the outcome; and
• any other relevant consideration.

The discretion is broad, but it must be exercised judicially according to the circumstances of the case: Coster v Bathgate [2005] 2 Qd R 496; [2005] QCA 210 at [20].

Cost alone is rarely decisive. A substantial disclosure exercise may be justified where the documents go to the central liability issue or may determine the proceeding. Conversely, even a moderately expensive exercise may be disproportionate where it concerns a minor issue with little prospect of affecting the result.

The amount in dispute is relevant, but not every proceeding is measured only in money. A case may concern property rights, professional reputation, injunctive relief or the future operation of a business. Those matters may justify disclosure that appears disproportionate if attention is confined to the damages claimed.

Cost, Proportionality and the Importance of the Documents

A useful rule 224 proposal usually offers the court a workable alternative rather than asking for disclosure to be abandoned altogether.

Possible alternatives include:

• limiting searches to nominated custodians;
• applying agreed search terms;
• excluding duplicate documents;
• confining disclosure to a defined period;
• dealing first with documents relevant to a preliminary issue;
• using technology-assisted review for a large electronic collection; or
• permitting inspection instead of requiring copies to be delivered.

The proposed limits must still allow the parties to determine the real issues fairly. A party should not be relieved from searching an obvious source of decisive documents simply because the search would be inconvenient.

Nor should disclosure become an exercise in extracting commercial pressure. A request may be technically connected to the pleadings yet produce very little forensic value compared with the work required to answer it. Rule 224 gives the court the means to correct that imbalance.

Confidential or Commercially Sensitive Documents

Confidentiality does not, by itself, excuse disclosure. Commercial agreements, pricing information, customer data and internal business records may still need to be disclosed if they are directly relevant.

The real question is whether the sensitivity can be managed without withholding the documents altogether.

Depending on the circumstances, the court may limit access to external solicitors, counsel or nominated experts; require redaction of irrelevant confidential information; restrict copying; or impose conditions governing storage and use. Such measures can preserve a party’s legitimate commercial interests while allowing the litigation to proceed fairly.

A party seeking protection should identify the particular harm likely to result from unrestricted disclosure. Labeling an entire class of documents “commercial-in-confidence” does not explain why access should be limited or what protective order is required.

Failure to Give Disclosure Under Rule 225

Consequences of Non-Disclosure

Rule 225 gives non-disclosure consequences that extend beyond an order to complete the task.

If a party does not disclose a document as required under the relevant division, rule 225(1) provides that the party:

• must not tender the document or adduce evidence of its contents at trial without leave;
• is liable to contempt for failing to disclose it; and
• may be ordered to pay all or part of the costs of the proceeding.

The restriction on using the document prevents a party from withholding evidence during disclosure and producing it for the first time when it becomes tactically advantageous. Leave remains available because not every omission is deliberate. A document may be found late despite a reasonable search, or its relevance may become apparent only after the issues change.

A party discovering an omitted document should disclose it promptly and explain the delay. Waiting until trial compounds the problem and may cause an adjournment, wasted preparation and avoidable costs.

The reference to contempt should also be read carefully. Rule 225 makes a non-disclosing party liable to contempt; it does not mean every oversight automatically results in punishment for contempt. The circumstances of the default, including whether it was deliberate and whether reasonable searches were conducted, will matter.

Costs and Other Court Orders

Under rule 225(2), a party affected by non-disclosure may apply on notice for:

• a stay or dismissal of all or part of the proceeding;
• judgment or another order against the party required to disclose; or
• an order requiring disclosure in the manner and within the time specified by the court.

The usual first response to a remediable default is an order requiring compliance by a fixed date. Rule 225(3) allows the court to specify what will happen if that order is breached. This can produce a self-executing or “guillotine” order under which a stated consequence follows upon further default.

Such an order should be taken literally. A party should not assume that another extension will be granted after the deadline passes.

Costs may be ordered where non-disclosure causes additional correspondence, an interlocutory application, an adjournment or duplicated preparation. The court may order costs against the defaulting party even if the proceeding continues and the missing documents are eventually disclosed.

Staying or Dismissing a Proceeding

Dismissal is a serious response and is not the ordinary consequence of an isolated mistake.

The court will consider the importance of the missing disclosure, the persistence of the default, compliance with earlier orders, the prejudice caused and whether the party has made genuine efforts to remedy the problem. Those considerations were identified in Mango Boulevard Pty Ltd v Spencer & Ors [2008] QCA 274 at [24].Mango Boulevard Pty Ltd v Spencer

A party’s conduct across the proceeding may be more significant than any one missing document. Repeatedly changing explanations, ignoring orders, conducting obviously inadequate searches or producing documents in unusable form can demonstrate that the failure is not merely accidental.

In KAE v WAK [2010] QCA 327 at [37]–[38], the Queensland Court of Appeal upheld dismissal where the disclosure failures had made it impossible to prepare the matter for trial, let alone try it. The case illustrates the level of default capable of attracting the most severe sanction: the non-compliance had frustrated the proper progress of the proceeding.

The court’s concern is not punishment for its own sake. It is whether the case can still be resolved justly and whether a lesser order can cure the prejudice.

How Rules 223, 224 and 225 Work Together

The three rules perform distinct functions.

Rule 223 identifies what further disclosure or explanation the court may require. Rule 224 determines whether a party should be excused from an obligation that would otherwise apply. Rule 225 supplies the consequences where a document required to be disclosed is withheld.

The distinction can affect the result. A party that obtains relief under rule 224 is no longer required to disclose the documents covered by the order to the specified extent. Rule 225 does not punish a failure to perform an obligation from which the party has been relieved.

By contrast, an order under rule 223 may place beyond doubt that a document or class must be disclosed. Failure to comply can then support relief under rule 225, including an order with specified consequences for continued default.

Practical Steps in a Disclosure Dispute

Before seeking an order, identify the issue in the pleadings to which the requested documents are directly relevant. The request should then describe the documents with enough precision to permit a sensible search.

The next step is to identify the objective basis for saying that disclosure is incomplete. Useful evidence may be found in the documents already disclosed, witness evidence, contractual record-keeping requirements, financial entries or references to missing attachments and reports.

Correspondence should state the perceived deficiency, the documents sought and the basis on which they are believed to exist. A reasonable opportunity should be given to conduct further searches and respond. Although rule 223 does not invariably require a preliminary warning before an application, clear correspondence may resolve the issue and will usually assist on costs.

The responding party should not answer with a bare denial. It should investigate the request, explain any ambiguity, identify disproportionate categories and state whether additional searches have been undertaken. If the burden is genuinely excessive, a narrower search protocol or an application under rule 224 may be appropriate.

Neither side benefits from treating every disclosure disagreement as evidence of misconduct. Many disputes arise from different understandings of relevance, poorly framed document categories or incomplete searches across old systems. The court application should be reserved for a real deficiency that matters to the proceeding.

Frequently Asked Questions

Can the court order a party to disclose a specific document?

Yes. Rule 223 allows the court to order delivery or production for inspection of a specified document or class of documents. The requirements in rule 223(4) must be satisfied.

Is suspicion that further documents exist enough?

Ordinarily, no. There must be an objective basis for believing that the duty has not been complied with or that the identified documents exist or existed. The authorities describe this as requiring something more than mere suspicion.

Can a party be required to explain what happened to a missing document?

Yes. The court may order an affidavit stating that the document does not exist or has never existed, or explaining how it ceased to exist or passed out of the party’s possession or control.

Can disclosure be limited because it is too expensive?

Potentially. Rule 224 requires the court to consider the time, cost and inconvenience of disclosure in light of the amount involved, the importance of the relevant issue and the likely effect on the outcome. Expense must be established by evidence and assessed against the forensic value of the documents.

Are confidential documents exempt from disclosure?

Not merely because they are confidential. The court may use restricted-access, redaction or other protective orders where the documents are relevant but commercially sensitive.

Can an undisclosed document be used at trial?

Only with the court’s leave. Rule 225 prevents a party from tendering an undisclosed document, or adducing evidence of its contents, without permission.

Can a proceeding be dismissed for failure to disclose documents?

Yes, although dismissal is reserved for serious cases. Persistent non-compliance that prevents the proceeding from being prepared or tried fairly may justify dismissal, judgment or another order under rule 225.

How Stonegate Legal Can Help

Disclosure disputes can affect the evidence available at trial, the cost of the proceeding and, in serious cases, whether a claim or defence can continue.

Stonegate Legal advises parties to Queensland civil proceedings about disclosure obligations, requests for further disclosure, claims of privilege, applications under rules 223 and 224, and responses to alleged non-compliance under rule 225. Early advice can help distinguish a genuine evidentiary gap from an unnecessarily broad request and ensure that any application is supported by evidence and directed to the pleaded issues.

Queensland Disclosure and Evidence Guides

Our Queensland civil litigation disclosure series covers the principal procedures for obtaining and exchanging documentary evidence under the UCPR: