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) (the 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. The specific text of the UCPR is:
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.
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. Thus, an implied or inferred reference is insufficient to warrant a 222 request.
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.
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:
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 request notwithstanding such references could almost certainly refer to a document.
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. Where a party does not have the document requested under rule 222 in their possession, they are not required to produce the document. 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.
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.
Under rule 515 of the UCPR a party under simplified procedures does not have to disclose a document (unless the court orders otherwise):
• In possession or under the control of the party; and
• 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. 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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