How to Obtain Documents Referred to in Pleadings in Queensland
Rule 222 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provides a specific procedure by which a party to civil proceedings may require another party to produce a document that has been mentioned in that party’s pleadings, particulars or affidavits.
The rule provides:
A party may, by written notice, require another party in whose pleadings, particulars or affidavits mention is made of a document—
(a) to produce the document for the inspection of the party making the requirement or the solicitor for the party; and
(b) to permit copies of the document to be made.
The operation of r 222 is therefore relatively straightforward in principle. Where one party mentions a document in a pleading, particulars, or an affidavit, another party may give written notice requiring the document to be produced for inspection and permitting copies to be made.
The rule is important because it operates as a specific right to obtain documents that a party has itself mentioned in its pleadings, particulars or affidavits. It is distinct from the general duty of disclosure under the UCPR and may extend to documents which would not otherwise fall within that general duty.
That distinction was recognised by Holmes J in Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd; [2004] QSC 120. Her Honour explained that the obligation arising from a request for production of a document referred to in a pleading or affidavit is not simply another manifestation of the ordinary disclosure obligation. The distinction is significant because the document sought under r 222 is identified by the opposing party’s reference to it, rather than by asking whether it falls within the ordinary test for disclosure.
Accordingly, r 222 can have practical importance at an early stage of litigation. For example, a plaintiff may refer in its Statement of Claim to a contract, notice, correspondence, report or other document upon which an allegation is based. A defendant required to plead to that allegation may need to see the document before it can properly understand and respond to the case being advanced against it. Rule 222 provides a mechanism for obtaining that document by written notice rather than requiring the defendant to wait for the ordinary disclosure process.
The existence of that separate procedure was explained in Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] 2 Qd R 481 at 484–485, where Holmes J considered the relationship between the obligation to produce documents referred to in pleadings or affidavits and the general disclosure regime. The decision confirms that the procedure may have a practical operation beyond documents otherwise caught by ordinary disclosure.
The ability to invoke r 222 is not, however, triggered merely because a party believes that a document probably exists. The pleading, particulars or affidavit must make sufficient mention of a document.
This limitation was considered directly by Mackenzie J in Lilypond Constructions Pty Ltd v Homann [2005] QSC 263. A notice had sought production of written material associated with references to “instructions” appearing in affidavit material. Although it was probable that some documentary evidence of those instructions had been created, the affidavits did not expressly identify documents containing the instructions.
Mackenzie J held at 414:
In my view rule 222 requires a clear and unambiguous reference to a document before it can operate.
His Honour’s reasoning demonstrates the distinction at the centre of r 222. It is not enough that the facts make a document’s existence probable. Nor is it sufficient that a party can infer that some written record must have existed. The rule concerns documents that have actually been mentioned.
That principle has subsequently been applied consistently in Queensland. In Balnaves v Smith [2008] 2 Qd R 413; [2008] QSC 215, Douglas J considered an affidavit which stated that instructions had been given “after having the benefit of our and Counsel’s advice“. The fact that legal advice had been obtained did not, by itself, mean that the affidavit had referred to a document containing that advice.
His Honour stated at 415 that r 222 and cognate provisions require:
… direct allusion to the document, an inferred or implied reference being insufficient.
The distinction is important. A reference to information, advice, instructions, negotiations or communications does not automatically amount to a reference to a document merely because those matters may have been recorded in writing.
The same approach was subsequently endorsed by the Queensland Court of Appeal in Amos v Brisbane City Council [2012] QCA 206. The authorities therefore establish that r 222 is directed to the production of an identifiable document to which sufficient reference has been made. It is not a mechanism by which a party can convert an inference that documents probably exist into an entitlement to inspect them.
The point was succinctly restated by Butler SC DCJ in True Timbers Pty Ltd v Grand Eagle Constructions Pty Ltd [2014] QDC 221 at [14]:
Rule 222 applies only where there is a clear and unambiguous reference to a document. Implication or inference as to the existence of a document is insufficient.
There are also important limits on what constitutes a reference for the purposes of the rule. In Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] 2 Qd R 481; [2004] QSC 120, Holmes J held that documents referred to in an exhibit to an affidavit do not, merely by reason of that reference, fall within r 222. The relevant mention must therefore be found in the pleading, particulars or affidavit itself rather than simply in material exhibited to an affidavit.
Rule 222 also does not abrogate legal professional privilege. A document may be sufficiently identified or mentioned to invoke the rule while still protected from production by privilege.
In Balnaves v Smith [2008] QSC 215 at [11]–[12], Douglas J rejected the proposition that r 222 overrode a claim for legal professional privilege in respect of legal advice referred to in an affidavit. The rule contains no language sufficient to displace that substantive protection.
The same distinction was expressed by Wilson J in GSM (Operations) Pty Ltd v Suwenda [2010] QSC 33, where her Honour stated that:
… mere mention of a document does not amount to waiver of legal professional privilege if it otherwise exists.
The operation of r 222 must therefore be separated from the question of privilege. The first question is whether the pleading, particulars or affidavit makes the necessary reference to a document so that r 222 is engaged. If it does, a separate question may arise as to whether the document is privileged and, if so, whether anything has occurred which amounts to waiver of that privilege.
Rule 222 consequently occupies a specific and useful position within Queensland civil procedure. It allows a party to require the production of documents that an opposing party has chosen to mention in its pleadings, particulars, or affidavit evidence, without making the right dependent on the ordinary disclosure process.
At the same time, the authorities impose a defined boundary upon the rule: there must be a sufficiently clear reference to a document, rather than an inference that a document exists, and the rule does not itself defeat an otherwise valid claim of legal professional privilege.
For practitioners, the starting point is therefore the document in which the reference appears. Pleadings, particulars and affidavits should be examined not merely for the allegations and evidence they contain, but also for the documents to which they expressly refer. Where an identifiable document is mentioned, and its contents are material to understanding or responding to the opposing party’s case, r 222 provides a direct procedural mechanism for requiring its production.
What Does Rule 222 Say About Documents Referred to in Pleadings?
The provision in rule 222 creates a discrete procedure for inspection. Its operation depends upon the occurrence of a particular event in the litigation: one party has referred to a document in a pleading, particulars or affidavit. Once that occurs, another party may invoke r 222 by written notice and require access to the document.
The scope of the provision is best understood by examining what each part of the rule requires.
A Rule 222 Request Must Be Made by Written Notice
The procedure under r 222 is initiated by written notice. This requirement distinguishes the procedure from informal correspondence seeking documents as a matter of cooperation between solicitors. A party relying upon r 222 is exercising a procedural entitlement conferred by the UCPR and should identify the request accordingly.
The written notice performs an important function. It identifies the document said to have been mentioned and communicates that inspection and copying are required under the rule. The provision itself does not stipulate a prescribed form of notice. The operative requirement is that the demand be made in writing.
Documents Referred to in Pleadings, Particulars or Affidavits
Rule 222 expressly extends to documents mentioned in:
- pleadings;
- particulars; or
- affidavits.
Each category has independent significance.
A reference in a Statement of Claim, Defence, Reply or other pleading may therefore enliven the rule. The same applies where the relevant reference emerges through particulars supplied in relation to a pleaded allegation.
Affidavit evidence is separately and expressly included.
The inclusion of particulars is significant because documents relevant to the pleaded case may first become identifiable when a party provides greater specificity concerning an allegation. A party cannot avoid the potential operation of r 222 merely because the document is identified in particulars rather than appearing in the originating pleading itself.
The Document Must Be Clearly Mentioned
The statutory language is significant. Rule 222 does not say that a document must be annexed, exhibited, quoted, relied upon or incorporated into the pleading or affidavit. The language chosen is that “mention is made of a document”. The Queensland authorities have nevertheless treated that expression as imposing a real threshold. There must be a reference to the document itself.
The distinction was examined in GSM (Operations) Pty Ltd v Suwenda [2010] QSC 33. Wilson J considered whether r 222 could operate where an affidavit referred to opinions or advice and other evidence established that those opinions were contained in a document.
Her Honour framed the issue:
Is r 222 engaged where the affidavit does not contain mention of a document, but there is other evidence establishing unequivocally that the opinions of which mention is made are contained in a document?
In considering that issue, Wilson J referred to Marubeni Corporation v Alafouzos [1986] CA Transcript 996. The affidavit in that case stated:
The plaintiffs have obtained outside Japanese legal advice which categorically states that this agreement does not render performance of the sale contract illegal in any way whatsoever.
During argument it was conceded that the advice would “almost certainly” have been contained in a document. Lawton LJ nevertheless regarded the affidavit as not containing a reference to a document.
Wilson J adopted that approach to the Queensland rule:
In my respectful opinion, the approach of Lawton LJ is to be applied to r 222 of the UCPR.
The significance is that the operation of r 222 is determined by what the pleading, particulars or affidavit says. Extrinsic evidence establishing that the subject matter mentioned was recorded in a document does not necessarily convert the underlying reference into mention of that document.
Rule 222 Allows Inspection of the Document
The first substantive entitlement conferred by the rule is the right to require the document to be produced for inspection.
Rule 222(a) expressly permits inspection by either:
the party making the requirement or the solicitor for the party.
The rule therefore recognises inspection by the litigant personally or through the litigant’s solicitor.
Inspection is conceptually distinct from disclosure of a document’s existence. The procedure concerns access to the document itself.
This distinction explains the placement of r 222 within the UCPR provisions dealing with disclosure and inspection. The rule is not merely concerned with identifying documentary material. It provides a mechanism by which the contents of a document already brought into the proceeding by reference can be examined.
Copies of Documents Referred to in Pleadings May Be Made
Inspection is accompanied by a separate entitlement under r 222(b): the producing party must permit copies of the document to be made.
The inclusion of this requirement has practical significance. A party exercising r 222 is not restricted to temporarily examining the document or taking notes on its contents. The rule expressly contemplates reproduction of the document.
The two limbs of the rule therefore operate together. The party may require production for inspection and may also require the opportunity to obtain a copy.
Can Rule 222 Apply to Superseded Pleadings or Affidavits?
A document does not necessarily cease to be susceptible to a r 222 request merely because the pleading or affidavit in which it was mentioned is no longer current.
This issue arose in Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] QSC 120.
Holmes J accepted that an applicant could seek an order concerning documents referred to in pleadings or affidavits which were no longer current in the proceeding.
The principle has practical significance where pleadings are amended. A document may have been expressly identified in an earlier pleading and subsequently disappear from the amended version. The amendment does not necessarily erase the procedural significance of the earlier reference.
The same reasoning may be relevant where affidavit material has ceased to be current. The focus remains upon the fact that the document was referred to in material of the kind identified by r 222.
Rule 222 Does Not Apply to Broad Categories of Related Documents
The wording of r 222 is document-specific. It permits a party to require production of “the document” of which mention has been made. It does not confer an entitlement to every document related to the subject matter of the reference.
That distinction prevents r 222 from becoming an open-ended documentary inquiry. If a pleading refers to a particular agreement, the relevant object of r 222 is that agreement. The reference does not, without some separate basis, extend the request to every draft, email, file note or other document associated with the agreement. This construction is consistent with the authorities requiring attention to the actual documentary reference rather than the broader factual circumstances from which additional documents might be inferred.
Where the issue is not simply access to a document, but whether the pleading or particulars are unclear, defective or unsupported, parties may also need to consider whether there are grounds for striking out pleadings and particulars.
Rule 222 Must Be Read According To Its Specific Procedural Function
Rule 222 sits between provisions dealing with deferral of disclosure and documents relating only to damages on the one hand, and the Court’s broader powers to make orders concerning disclosure under r 223 on the other. That statutory context assists in identifying its function.
Rule 222 itself does not confer a general power to investigate whether documents exist. Nor does it contain the broader language found in r 223, under which the Court may make orders concerning a “document or class of documents“. The language of r 222 is materially narrower: it is directed to “the document” of which mention has been made. The distinction is deliberate. Rule 222 provides a defined mechanism for inspection based upon a documentary reference already appearing in the opposing party’s litigation material. Broader disputes about disclosure are addressed elsewhere in the UCPR.
The practical result is that the terms of the pleading, particulars or affidavit determine the initial scope of the request. The requesting party must work from the documentary reference made, rather than use r 222 as a basis for enlarging that reference into a wider category of potentially relevant documents.
Documents Referred to in Pleadings Must Be Clearly Identified
The central threshold under r 222 is whether the pleading, particulars or affidavit contains a sufficiently clear reference to the document sought. The rule is not engaged merely because the surrounding facts suggest that a document probably exists.
In Lilypond Constructions Pty Ltd v Homann [2005] QSC 263 at [12]–[15], Mackenzie J considered affidavits referring to “instructions”, where it was probable that some documentary record of those instructions existed. That probability was insufficient. His Honour held:
In my view rule 222 requires a clear and unambiguous reference to a document before it can operate.
The distinction is between reference to the underlying information and reference to a document containing that information. In GSM (Operations) Pty Ltd v Suwenda [2010] QSC 33, Wilson J applied that distinction where an affidavit referred to opinions but did not expressly refer to a document containing those opinions. Her Honour concluded that the relevant passage contained:
a direct allusion to opinions but not a direct allusion to a document containing opinions.
Accordingly, r 222 was not engaged. The fact that the opinions were known, or could be shown, to have been recorded in writing did not convert the reference to the opinions into a reference to the document itself.
The same approach was adopted by McMurdo J in Kado v Taisei Kanko Australia Pty Ltd [2012] QSC 179 at [2]. Her Honour stated that it was common ground that r 222:
… is engaged only where there is a ‘direct allusion’ to a specific document and an inferred or implied reference is insufficient.
Importantly, however, the test should not be made artificially demanding. In Kado, McMurdo J adopted the reasoning of Rix LJ in Rubin v Expandable Ltd [2008] 1 WLR 1099 that the expression “mentioned” is deliberately general and that the document need not be relied upon or referred to for any particular purpose. The issue is whether the document has actually been mentioned, not the purpose for which it was mentioned.
The Queensland Court of Appeal subsequently considered the requirement in Amos v Brisbane City Council [2012] QCA 206. The authorities establish that an inferred or implied documentary reference is insufficient. That principle was later summarised by Butler SC DCJ in True Timbers P/L v Grand Eagle Constructions P/L [2014] QDC 221 at [14]:
Rule 222 applies only where there is a clear and unambiguous reference to a document. Implication or inference as to the existence of a document is insufficient.
The practical distinction is therefore precise. A statement that a person received instructions, obtained advice, formed an opinion or received information does not necessarily constitute mention of a document recording those matters. Rule 222 becomes available only where the language used amounts to a reference to the document itself. The Court examines what the pleading, particulars or affidavit actually says, rather than what documents might logically be expected to exist behind it.
When Information Is Not Enough to Trigger a Rule 222 Request
The distinction can be demonstrated by comparing two statements. An affidavit stating, “I received advice from my accountant that the company was insolvent”, refers to advice. It may be reasonable to suspect that the accountant provided that advice by email or written report, but the statement does not itself identify either document.
By contrast, “I received the accountant’s insolvency report dated 4 February 2026” expressly identifies a document. That difference can determine whether r 222 is available. The rule follows the words actually used in the pleading, particulars or affidavit, not assumptions about the documentary material that probably sits behind them.
Do Documents Referred to in Affidavit Exhibits Count?
A distinction arises where the document sought is not mentioned in the affidavit itself, but in material exhibited to it. Rule 222 refers expressly to documents mentioned in a party’s “pleadings, particulars or affidavits“. A reference appearing only within an exhibit does not satisfy that requirement.
The issue was determined in Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] QSC 120, per Holmes J. Her Honour held that documents referred to in an exhibit to an affidavit do not fall within the ambit of r 222 merely because the exhibit has been annexed to, or tendered with, the affidavit.
The distinction is substantive. An affidavit may exhibit a contract, report, letter or other document which itself refers to further documents. Those secondary references are references made by the exhibit, not by the affidavit. Their inclusion within the evidentiary material does not convert them into documents “mentioned” in the affidavit for the purposes of r 222.
Accordingly, the relevant inquiry is directed to the affidavit itself. Where the only reference to the document sought appears within an exhibit, r 222 does not provide a right to its inspection on that basis alone.
Can Privilege Prevent Production of Documents Referred to in Pleadings?
Rule 222 does not displace legal professional privilege. A document may be sufficiently referred to for the rule to be engaged while remaining protected from inspection on the ground of privilege.
The position was considered directly in Balnaves v Smith [2008] QSC 215 at [11]–[12]. Douglas J rejected the contention that r 222 overrides legal professional privilege. The rule contains no sufficiently clear language, or necessary implication, by which that substantive protection is removed.
The distinction between reference to a privileged document and waiver of the privilege was subsequently addressed in GSM (Operations) Pty Ltd v Suwenda [2010] QSC 33. Wilson J stated:
… mere mention of a document does not amount to waiver of legal professional privilege if it otherwise exists.
Accordingly, the fact that a privileged document has been mentioned for the purposes of r 222 does not, without more, entitle the opposing party to inspect it. Whether privilege has been waived remains a separate question.
The practical distinction is between mentioning the existence of privileged advice and deploying its substance in the proceeding. In Balnaves, the affidavit disclosed that advice had been received and that conduct followed that advice, without revealing its effect. That was insufficient to establish conduct inconsistent with maintaining confidentiality. Balnaves v Smith [2008] 2 Qd R 413 at 416 [12].
A r222 request therefore cannot, by itself, be used to circumvent legal professional privilege. Where privilege attaches, the separate principles governing waiver must be satisfied before the document becomes liable to inspection.
Using Rule 222 to Obtain Documents Before Filing a Defence
Rule 222 has particular utility where documents identified in a Statement of Claim are necessary to understand the case a defendant must answer.
The practical purpose was recognised in John Kallinicos Accountants Pty Ltd & Anor v Dundrenan Pty Ltd & Ors [2009] QDC 141. The Court accepted the proposition that:
… in the case of documents referred to in the statement of claim, those documents should be provided to permit the Defendants to draft the Defence so as to comprehensively address the allegations.
This accords with the pleading obligations imposed by the UCPR. Under r 149(1)(b), a pleading must contain “a statement of all the material facts on which the party relies”, while r 150(4) requires a defendant to specifically plead matters which make the opposing claim not maintainable or which raise matters not arising from the previous pleading.
Access to documents expressly relied upon in the Statement of Claim can therefore be important to the defendant’s ability to plead responsively and with precision. This is particularly so where the pleaded allegation depends upon the terms or effect of a contract, deed, correspondence, notice or other identified document.
Obtaining documents referred to in pleadings can be particularly important where the strength of a claim or defence may later be tested through summary judgment applications, because the Court must consider whether the opposing party has no real prospect of succeeding or successfully defending the claim, as applicable, and whether there is a need for a trial.
Using Rule 222 to Obtain a Contract Referred to in Pleadings
Consider a defendant served with a Statement of Claim alleging breach of a written agreement. The plaintiff pleads that the agreement was entered into on a particular date and relies upon specific obligations said to arise under it, but does not attach the agreement.
Where the plaintiff’s pleaded case depends upon the meaning or effect of contractual terms, access to the agreement may be important to the defendant’s ability to plead responsively. A r 222 notice can be directed specifically to the agreement identified in the Statement of Claim, allowing it to be inspected before the defence is prepared.
The distinction is important. The defendant is not searching for documents that might support its case. It is seeking the very document the plaintiff has chosen to identify as part of its pleaded case.
The practical connection between production under r 222 and preparation of a Defence is illustrated by a Queensland Magistrates Court decision in which documents identified in the Statement of Claim were sought before the Defence was due. After the plaintiff provided the relevant documents, the Court found that the defendants were “in a position to plead to the Statement of Claim”.
Rule 222 can therefore operate at a procedurally important point: after service of the plaintiff’s pleading but before the defendant commits to its responsive pleading. Used in that context, it permits the Defence to address the pleaded case by reference to the documents identified by the plaintiff, rather than requiring the defendant to plead without first seeing those documents.
How to Make an Effective Rule 222 Request
There is no prescribed court form for a r 222 request. The rule requires only a written notice. In practice, the request may be made by formal correspondence identifying the relevant document and requiring its production for inspection and copying.
Precision matters. The notice should identify the pleading, particulars or affidavit containing the reference, the relevant paragraph, and the particular document sought. A request framed broadly as “all documents relating to” a subject risks exceeding the scope of r 222.
Keep a Rule 222 Request Limited to the Document Mentioned
Assume a Statement of Claim pleads that the defendant received a letter of demand dated 15 March 2026. A targeted r 222 request would identify that paragraph and require production of the letter of demand dated 15 March 2026. A request for “all letters, emails, file notes and other communications concerning demands for payment” is fundamentally different. It attempts to expand one identified document into an entire category of potentially relevant documents. The first request follows the document identified in the pleading. The second attempts to use r 222 as a substitute for broader disclosure.
That problem arose in Lilypond Constructions Pty Ltd v Homann [2005] QSC 263, where the notice sought “all and any written material” associated with matters referred to in affidavits. Mackenzie J observed that the notice:
… proceeds on the assumption that there would be such documents but does not identify any specific document as having been mentioned in the affidavit.
The request should also reflect the precise entitlement conferred by the rule. Rule 222 does not technically require the receiving party simply to send a copy. It permits the requesting party to require production for inspection and to make copies.
This distinction was addressed in John Kallinicos Accountants Pty Ltd & Anor v Dundrenan Pty Ltd & Ors [2009] QDC 141 at [31]–[32]. The request had sought provision of a copy “pursuant to rule 222”. The Court noted that:
the rule is not in these terms.
The Court nevertheless construed the request according to r 222, namely as requiring production of the document for inspection by the solicitor and permission for the solicitor to make copies: John Kallinicos Accountants Pty Ltd & Anor v Dundrenan Pty Ltd & Ors [2009] QDC 141 at [32].
An effective notice should therefore:
- identify the particular document already mentioned;
- identify where that mention appears;
- expressly invoke r 222 of the Uniform Civil Procedure Rules 1999 (Qld);
- require production of the document for inspection; and
- require permission to make a copy.
The notice should remain confined to the document mentioned. Broader categories of potentially relevant documents fall under the general disclosure regime, not a request under 222.
What Happens if Documents Referred to in Pleadings Are Not Produced?
Where a party refuses to produce a document sought under r 222, the requesting party may seek the Court’s intervention under the broader disclosure powers in r 223 of the Uniform Civil Procedure Rules 1999 (Qld).
Rule 223(1) permits the Court to order disclosure of a document or class of documents by requiring delivery of a copy or production for inspection. The power is not unrestricted. Under r 223(4), an order under r 223(1) may be made only where:
(a) there are special circumstances and the interests of justice require it; or
(b) it appears there is an objective likelihood—
(i) the duty to disclose has not been complied with; or
(ii) a specified document or class of documents exists or existed and has passed out of the possession or control of a party.
The Court may also require an affidavit addressing a disputed document. Under r 223(2), the Court may order a party to state by affidavit that the document does not or never did exist, or explain the circumstances in which it ceased to exist or passed out of that party’s possession or control.
The interaction between rr 222 and 223 was considered in Julstar Pty Ltd v Lynch Morgan Lawyers [2012] QDC 272. The Court recognised that r 223(1) empowers the Court to order production of a document “for the inspection of the other party”, subject to the requirements imposed by r 223(4).
A refusal based upon privilege or another recognised objection does not automatically determine the issue. Rule 223(5) expressly provides that:
the court may inspect the document to decide the objection.
Accordingly, where a valid r 222 request is resisted, the dispute may ultimately require determination by the Court. The requesting party must still establish the proper basis for the order sought, while the resisting party may maintain any available objection, including legal professional privilege.
If the document is held by a non-party, or cannot be obtained through Rule 222 or ordinary disclosure, a party may need to consider whether subpoenas are the appropriate procedure for requiring production of documents in Queensland civil proceedings.
Key Takeaways
Rule 222 is narrow in scope but significant in practice. Its operation can be reduced to several key principles:
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A party may use written notice to require inspection and copying of a document mentioned in another party’s pleadings, particulars or affidavits.
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The document must be clearly and unambiguously referred to. An inference or implication that a document exists is insufficient: Lilypond Constructions Pty Ltd v Homann [2006] 1 Qd R 411 at 413–414; [2005] QSC 263 at [12]–[15]; Amos v Brisbane City Council [2012] QCA 206.
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The distinction is between a reference to information and a reference to the document itself: GSM (Operations) Pty Ltd v Suwenda [2010] QSC 33.
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Documents referred to only within an exhibit to an affidavit do not fall within r 222: Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] 2 Qd R 481; [2004] QSC 120.
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Rule 222 may extend to documents mentioned in pleadings or affidavits that are no longer current in the proceeding: Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] 2 Qd R 481; [2004] QSC 120.
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Mere mention of a document does not waive legal professional privilege. Privilege and waiver remain separate questions: Balnaves v Smith [2008] 2 Qd R 413 at 416; [2008] QSC 215 at [11]–[12]; GSM (Operations) Pty Ltd v Suwenda [2010] QSC 33.
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A r 222 notice should identify the specific document and the precise reference to it, rather than seek broad categories of documents.
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Where production is resisted, the Court’s broader powers concerning disclosure and inspection under r 223 UCPR may become relevant.
The central principle is straightforward: r 222 provides access to a document that an opposing party has actually mentioned. It does not provide a means of obtaining documents merely because their existence can be inferred from the case being advanced.
Frequently Asked Questions
The following frequently asked questions address the practical operation of Rule 222, including when a request may be made, which documents may be obtained, the rule’s limits, legal professional privilege, and what may occur if a party refuses to provide a document.
What is a Rule 222 request in Queensland?
A Rule 222 request is a written notice under r 222 of the Uniform Civil Procedure Rules 1999 (Qld) requiring another party to produce for inspection, and permit copies to be made of, a document mentioned in that party’s pleadings, particulars or affidavits. It is a specific procedure for obtaining an identified document and is distinct from the ordinary disclosure process.
Does a Rule 222 request have to be in a particular form?
No. Rule 222 requires written notice, but does not prescribe a particular court form. The notice should identify the document sought, where it is mentioned, and require its production for inspection and permission to make a copy.
How clearly must the document be referred to?
There must be a clear and unambiguous reference to the document. It is insufficient that the existence of a document can merely be inferred or implied. This principle was established in Lilypond Constructions Pty Ltd v Homann [2006] 1 Qd R 411 at 413–414; [2005] QSC 263 at [12]–[15] and subsequently applied in cases including Amos v Brisbane City Council [2012] QCA 206.
Can Rule 222 be used where a pleading refers to advice or information but not a particular document?
Not necessarily. A reference to advice, instructions, information or an opinion is not automatically a reference to a document recording it. In GSM (Operations) Pty Ltd v Suwenda [2010] QSC 33, the distinction was described as one between a “direct allusion to opinions” and a “direct allusion to a document containing opinions”.
Can Rule 222 be used to request a broad category of related documents?
Rule 222 is directed to the document actually mentioned. It should not be used to transform a reference to one document into a demand for every email, draft, file note or other document concerning the same subject. Broader categories of relevant documents are ordinarily dealt with through the general disclosure regime.
Can I use Rule 222 to obtain documents referred to in a Statement of Claim before filing a Defence?
Yes, where the requirements of r 222 are otherwise satisfied. This can be particularly important where a plaintiff’s allegations depend upon an identified contract, notice, correspondence or other document. In John Kallinicos Accountants Pty Ltd & Anor v Dundrenan Pty Ltd & Ors [2009] QDC 141, the Court accepted that documents referred to in a Statement of Claim should be provided to permit defendants to draft their Defence so as to comprehensively address the allegations.
Does Rule 222 apply to documents mentioned only in an exhibit to an affidavit?
No. In Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] 2 Qd R 481; [2004] QSC 120, Holmes J held that documents referred to within an exhibit to an affidavit do not, merely because of that reference, fall within r 222. The relevant reference must be contained in the affidavit itself.
Does mentioning a privileged document mean legal professional privilege is waived?
No. Mention of a document and waiver of legal professional privilege are separate issues. In GSM (Operations) Pty Ltd v Suwenda [2010] QSC 33, Wilson J stated that “mere mention of a document does not amount to waiver of legal professional privilege if it otherwise exists”.
Can Rule 222 apply if the pleading or affidavit referring to the document is no longer current?
Yes. Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] 2 Qd R 481; [2004] QSC 120 establishes that an application may concern documents referred to in pleadings or affidavits which are no longer current in the proceeding. An amendment to a pleading therefore does not necessarily eliminate the significance of an earlier documentary reference.
What happens if the other party refuses to produce the document?
Court intervention may become necessary. Rule 223 gives the Court broader powers concerning disclosure, including powers to order production for inspection and, where an objection is made to production, to inspect the document to determine that objection. The requirements of r 223 must still be satisfied, and a party resisting production may maintain any available objection, including legal professional privilege.
