Preliminary Disclosure Orders in Qld
Last week, Attorney General Hon. Yvette D'Ath introduced the Justice and Other Legislation Amendment Bill for 2023 which foreshadows amendments to the Magistrates Court Act 1921 and District Court of Queensland Act 1967 to allow these courts to make preliminary disclosure orders. Currently these orders can only be made by application to the Supreme Court of Queensland.
What is a preliminary disclosure order?
As the name suggests, a preliminary disclosure order directs prospective defendants (or an independent third party in possession of relevant information/material) to disclose that information/ material to prospective plaintiffs prior to any substantive proceedings being commenced. It may be that a prospective claimant needs more information to determine the identity of who they can sue, or it could be that there is a document in someone's possession which is necessary for you to have to determine whether litigation is warranted. That said, any hint of a baseless, 'fishing expedition' style application will almost certainly be dismissed with costs, so it is important to obtain legal advice early on if you are considering engaging with these provisions.
Practical Considerations
Assuming the proposed amendments are enacted, there will be different practical considerations depending which side of the dispute you are. As an applicant, the first step should be engaging a lawyer experienced in litigation to make reasonable enquiries with the prospective respondent to your application to determine whether voluntary disclosure of the documents and/or information can be agreed on. the court will expect to be shown evidence of these attempts before you file an application. From a respondent's perspective, any steps you take need to be well informed (ie: get legal advice early) to ensure you do not expose yourself to costs orders. At the same time, you should understand the perimeters of what you can, can't and should do while also safeguarding your legal rights. For example, if disclosure of the information or material would constitute of waiver of any important privileges you are prima-facie entitled to rely on (ie: legal professional privilege or the privilege against self-incrimination), then this is a factor for the court to take into account before making any orders in favour of the applicant.
If you or someone you know require assistance or have any questions relating to pre-litigation processes including preliminary disclosure applications, contact Natashia Blank at Argon Law on 5443 9988.