Land Court refuses an application for disclosure of a document expert

by Ian Wright, Nadia Czachor, Thomas Massey
30 January 2018

In brief

The case of Company 57 Pty Ltd as TTE v Department of Transport and Main Roads (No.2) [2017] QLC 23 involved an application to the Land Court for an order that the Department of Transport and Main Roads disclose certain documents.  
 
The issues before the Court were as follows:
 
  • whether the Department could be compelled by a court order to disclose documents in the possession of the Department's expert where there was no evidence that the Department had control over the documents in question; and
  • whether the documents sought to be disclosed by the Applicant were directly relevant to a matter in issue in the proceedings.
The Court noted that the onus was on the Applicant to establish that the order for disclosure is to be made. 
 
An affidavit of the Department's expert addressed many of the categories of documents sought to be disclosed by the Applicant. The Department's expert was not required for cross-examination concerning these documents and there was no evidence to contradict the expert's affidavit. As such, given the uncontested nature of the expert's evidence, the Court found that the documents in these categories did not fall within the subject matter of the request for disclosure.
 
The request sought the disclosure of an extract from a text book that had been referred to in a report prepared by the Department's expert which was included in the Quarry Expert's Joint Report (Joint Report). The Court determined that this document fell outside the scope of what was disclosable under the application.      
 
The Court refused the application on the basis that the Applicant had not satisfied its obligations under Rule 211 of the Uniform Civil Procedure Rules 1999 (UCPR) in that it had failed to establish that the documents in question were in the possession of or under the control of the Department and directly relevant to a matter in issue in the proceedings.
 
The Court also ordered that the Applicant pay the Department's costs of the application. 

The Court found that the requested documents were not under the control of the Department

In relation to those documents that the Department's expert had not addressed in the expert's affidavit, there was no evidence that the documents were under the Department's control as required under Rule 211 of the UCPR. 
 
The Applicant sought to rely on the case of Erskine v McDowall [2001] QDC 192 in which the plaintiff was successful in seeking orders requiring a defendant to make an application to a government department under the Freedom of Information Act 1982 (Cth) for copies of documents in the government departments' possession. The Court distinguished Erskine v McDowall on the basis that the defendant in that case was the only party with the means of obtaining the documents in question. In the present case, the Applicant had the opportunity to request the documents from the Department's expert and could have obtained the documents through a subpoena or non-party disclosure. 

The Court found that the documents were not directly relevant to a matter in issue in the proceeding 

The Court noted that the Joint Report had been prepared and as such the experts were restricted from departing or qualifying an opinion in the Joint Report without the Court's leave to do so. 
 
The Court also noted that the Applicant had failed to identify the relevance of the requested documents to a matter in issue following the Joint Report. 
 
The Court therefore refused the application and ordered that the Applicant pay the Department's costs of the application for disclosure.

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Ian Wright Partner

Nadia Czachor Senior Associate