The Power of Rule 222 Requests

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What is a rule 222 Request?

A rule 222 Request (‘222 request’) is a request that can be made to inspect documents referred to in pleadings, particulars or affidavits pursuant to rule 222 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). Where a pleading, particular or affidavit refers to a document, a party may request the document to be produced for inspection or permit copies of the document to be made.1 The specific text of the UCPR is:

222 Inspection of documents referred to in pleadings or affidavits

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 underlying rationale of the rule is that access to documents should be readily available for inspection as it can be assumed that such documents are relied upon by the party having referred to them.2

When does rule 222 apply?

The Queensland Supreme Court has drawn from similar rules in other jurisdictions including New South Wales and England to determine that for a 222 request to apply, it requires a ‘direct allusion’ to a document.3 Thus, an implied or inferred reference is insufficient to warrant a 222 request.4

A reference to a conveyance, guarantee, mandate or mortgage may be sufficient to a direct allusion to a document but it must be read in context.5

What does a rule 222 mean in layman’s terms?

Judicial authority does not expressly explain what a ‘direct allusion’ is in lay terms, but for general guidance, rule 222 of the UCPR typically applies when:

  1. There is a clear and unambiguous reference to a document (for example, if the pleading stated “a written loan between the Plaintiff and Defendant”); or
  2. The allegation in the pleading, particular or affidavit must be a reference to a document.

Whilst most references in pleadings, particulars and affidavits to documents are usually straight forward, there are many cases where a document may be alluded to. The question must then be whether the reference is definitely a reference to a document. For example, if an affidavit referred to “a comprehensive expert opinion” it is highly likely that a ‘comprehensive’ expert opinion would be included in a written report, however, opinions can also be given orally. Such references to statements that could be made in writing or orally have typically been rejected as falling under a rule 222 request6 notwithstanding such references could almost certainly refer to a document.

When does the operation of rule 222 not apply?

The UCPR operates in most civil proceedings in Queensland Courts but does not operate in other jurisdictions or in QCAT, however, there may be similar rules depending on the jurisdiction.

The operation of rule 222 does not apply to exhibits annexed to an affidavit.7 Where a party does not have the document requested under rule 222 in their possession, they are not required to produce the document.8 Further, where an affidavit may be ambiguous as to the existence of a document at the time of reference and it is impossible to identify the specific document requested, then rule 222 cannot be relied upon.9

FAQs

There isn’t a specific court form required to make a rule 222 request. Accordingly, and subject to the rules on service, an email may suffice notwithstanding that most litigation lawyers will make a rule 222 request via letterhead.

A request by the defendant to the plaintiff could be as simple as:

  • Pursuant to Rule 222 of the Uniform Civil Procedure Rules 1999, the Defendant requires the Plaintiff to produce within 7 days of the date of this notice each of the following documents mentioned in the Plaintiff’s Statement of Claim filed on X date:
    • The “email dated 12 May” per paragraph 5;
    • The “XYZ.pdf” per paragraph 10;
    • The “3 minute video” per paragraph 15, particular (d);
    • The “business brochure” per paragraph 20;
    • The “powerpoint presentation” per paragraph 25;
    • The “invoice XYZ” per paragraph 30;
    • The “envelope” per paragraph 35;
    • etc

There is no specific timeframe in which a party must comply with a rule 222 request, however, documents referred to should be “readily available for inspection”.10 This indicates a short timeframe is available – perhaps within a week.  

There are consequences for non-disclosure, including being prohibited from tendering that document, contempt and liability on costs.11 Further, (typically after repeated failures) a court can also stay, dismiss or order judgment against a party for failing in their disclosure obligations.12 The latter consequences, and contempt, are rarely applied in practice.

No. Separate rules exist for QCAT.

The definition of a document can be found in Schedule 1 of the Acts Interpretation Act 1954 (Qld) which states that a document includes:

  • Any paper or other material on which there is writing; and
  • Any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and
  • Any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).

As such, the meaning of document in legislation is given a considerably wide meaning.

There have been concerns as to whether a mere reference to legal advice would constitute a direct allusion and if, upon proper construction of the rule, it would override legal professional privilege(“LPP”). In Balnaves v Smith,13 Justice Douglas adopted the view that should an affidavit merely refer to legal advice with no direct allusion to the advice in written form, then theoretically speaking there is no reference to a ‘document’. That is, in accordance with the definition of ‘documents’ contained in the Acts Interpretation Act 1954 (Qld).14 Further, Justice Douglas J stated the rule does not override legal privilege and could not be reasonably construed in such a manner as the rule did not possess clear words or any necessary implication to that effect.15 For practitioners requiring further guidance, a comprehensive case that deals with rule 222 and LPP is Conias Hotels Pty Ltd & Another v Brisbane City Council & another16.

Under rule 515 of the UCPR a party under simplified procedures does not have to disclose a document (unless the court orders otherwise):

  1. In possession or under the control of the party; and
  2. Directly relevant to an allegation in issue.

It is possible that a 222 request could cover some documents not directly relevant to an allegation raised in issue. As the simplified procedures do not expressly exclude the operation of rule 222 and only cover documents that are not directly relevant to an allegation in issue, a 222 request could therefore apply notwithstanding simplified procedures may be in place and may nonetheless be advantageous to request, including for example, documents regarding damages or that hurt the opposing side’s credibility.

The distinction between the general duty of disclosure in rule 211 and rule 222 is well-established.17 The practical difference between a rule 222 request and the normal duty of disclosure is when the document(s) needs to be disclosed.

Whereas a list of documents is typically delivered within 28 days after the close of pleadings (which is often many months after a claim is commenced) a rule 222 request can, for example, apply to a Statement of Claim before a Defence is filed.

Yes. Rule 222 requests are not, at least by default, excluded by Document Plans used in the Supreme Court, and whilst paragraph 6 of the example Document Plan provided in Practice Direction 18 of 2018 includes the delivery of documents referred to in pleadings, that does not necessarily capture documents that may otherwise fall within the ambit of a rule 222 request, including for example, documents referred to in affidavit material.

A good lawyer should, where it would not be otherwise disadvantageous to do so, draft court documents and affidavits in a way that avoids a direct mention or direct allusion to a document.

Lawyers also need to be careful about references to legal advice and client instructions because whether privilege is waived is a question of fact and there are a number of cases where lawyers have had to defend 222 requests for documents which contain LPP.

The usual answer is that you should always obtain a copy of a document mentioned in the opposing side’s pleadings or affidavits. This is important because sometimes there are different versions of the same document and it is important for the parties to be referring to the same document; it is not unusual for parties to think they are referring to the same document but have different versions which can lead to confusion and embarrassment.

There are few reasons why a party may not request a specific document, including whether a party does not want to draw unnecessary attention to a particular document, or because they do not want to unnecessarily increase legal costs. More often than not, however, having the full suite of documents and ensuring that each party is operating on the same key documents is almost always beneficial and if the parties are operating on different documents, it could significantly and unnecessarily increase costs.

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[1] Uniform Civil Procedure Rules 1999 (Qld) r 222

[2] Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] 2 Qd R 481

[3] Balnaves v Smith & Anor [2008] QSC 215 [7], [10]

[4] Balnaves v Smith & Anor [2008] QSC 215 [7]

[5] See for example Rubin v Expandable Limited [2008] 1 WLR 1099 and GSM (Operations) Pty Ltd v Suwenda [2010] QSC 33 page 1-10

[6] See for example Rubin v Expandable Limited [2008] 1 WLR 1099 and GSM (Operations) Pty Ltd v Suwenda [2010] QSC 33 page 1-11

[7] Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] QSC 120 [13] 

[8] Harvey v Commonwealth Scientific and Industrial Research Organisation [1999] QSC 191 [32]

[9] Lilypond Constructions Pty Ltd v Homann [2005] QSC 263 [14]

[10] Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] 2 Qd R 481

[11] Uniform Civil Procedure Rules 1999 (Qld) r 225(1)

[12] Uniform Civil Procedure Rules 1999 (Qld) r 225(2)

[13] Balnaves v Smith & Anor [2008] QSC 215

[14] Acts Interpretation Act 1954 (Qld) sch 1 definition of ‘document’

[15] Balnaves v Smith & Anor [2008] QSC 215 [12]

[16] [2016] QPEC 59

[17] RP Data Ltd v Property Data Solutions Pty Ltd & Anor [2006] 214 page 5

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The content of this publication is intended as general commentary only and may not be suitable or applicable to your personal circumstances. It is not intended to replace independent legal advice. You can contact us at our Brisbane Office for a free consultation on a range of litigation matters on (07) 3088 6364.

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