In brief

When faced with a claim of historical abuse, institutions in Queensland must navigate the intricate landscape of disclosure obligations, shaped by both the Personal Injuries Proceedings Act 2002 (PIPA) and the Uniform Civil Procedure Rules 1999 (UCPR). Amidst the challenges posed by the passage of time, mastering the art of disclosure is critical. Understanding the nuances of these frameworks can mean the difference between a streamlined defence and unexpected pitfalls.

What are the disclosure obligations under PIPA?

Under PIPA, when a claimant serves a complying notice of claim, the respondent must act swiftly.

Within one month, the respondent must give a claimant copies of reports and other documentary material in the respondent's possession about the incident, as well as reports about the claimant's medical condition or prospects of rehabilitation and cognitive, functional or vocational capacity (section 27(1)(a) PIPA). If asked by the claimant, the respondent must also provide information that is in the respondent's possession about the circumstances of, or reasons for, the incident (section 27(1)(b) PIPA).
The obligation contained within section 27(1)(b) is arguably the most crucial for respondents to effectively navigate from a claim's infancy, particularly for large institutions with long claims histories.
The respondent's obligations under section 27(1)(b) PIPA were examined in the recent case of SDA v Corporation of the Synod of the Diocese of Rockhampton & Anor (2021) 8 QR 440. The Court of Appeal in SDA clarified that information about the content of prior complaints made to an institution regarding a perpetrator's abuse of other persons was disclosable as information about the circumstances of, or reasons for, the incident. The court found that such information was both relevant to the institutions direct liability and vicarious liability for the alleged abuse:

  • In relation to direct liability, the information would bear upon the question whether any of the steps it is alleged in the notice of claim the respondent should have taken would have been effective to prevent the alleged sexual abuse.

  • In relation to vicarious liability, information that a perpetrator had previously sexually assaulted another person at the same institution supported the conclusion that the respondent was allowing the perpetrator to occupy a position of authority, power and control.

How do disclosure obligations under the UCPR compare?

Compared to the obligations under PIPA, pursuant to the UCPR, a wider net of disclosure is cast, with the duty to disclose under rule 211 encompassing any document directly relevant to issues in the pleadings. As was expressed in Haug v Jupiters Limited Trading as Conrad Treasury Brisbane (2008) 1 Qd R 276, the statutory obligation under PIPA is not as broad as an obligation to give a claimant copies of documents that are directly relevant to a matter in issue in the claim, where those are not documents about the incident. UCPR disclosure typically takes place after the close of pleadings, forming part of the standard pre-trial procedure.
Although there is a wider obligation of disclosure under the UCPR, care must be taken during the PIPA pre-litigation phase to ensure all documents falling within the ambit of section 27 are disclosed to the other side. Under section 32(2) of PIPA, a party may seek orders preventing a party from relying upon a document in subsequent court proceedings which was not disclosed during the pre-court proceedings.
In PG v State of Queensland [2023] QDC 109, the plaintiff claimed damages for breach of duty, breach of statutory duty and the alleged tortious conduct of the State of Queensland, its employees, servants or agents whilst he was in the custody of Brisbane Youth Detention Centre from 22 June 2004 to 8 September 2004. The State had previously disclosed 52 notices of claim which were heavily redacted to remove the names of claimants, witnesses and alleged perpetrators, details of the claimants' lawyers and treating medical providers.
The plaintiff made an application for disclosure pursuant to rule 223(1) of the UCPR seeking disclosure of unredacted copies of the notice of claim forms, any document concerning the allegations giving rise to the alleged liability of the defendant in the notice of claim forms, and any document recording information about or allegations of sexual abuse of a juvenile detainee at the Detention Centre from the period 22 June 1999 to 8 September 2009. The Court found:

  • documents relating to recording of information about allegations of sexual abuse (including records of complaints, investigation documents, pre-court proceedings and court documents) were disclosable subject to any valid claim for legal privilege;

  • the notices of claim were directly relevant to determining whether the State knew or ought to have known of other complaints of sexual abuse such that it breached its statutory duties or duty of care to the plaintiff;

  • there was no clear basis for the redactions made by the State and unredacted copies of the notice of claim forms, including the claimants' names, should be disclosed aside from the contact details of the claimants;

  • in respect of the time frame of relevant documents to be disclosed, a five-year period after the plaintiff left BYDC was too wide in scope. However, a three-year period "would also enable a court to more safely conclude whether the systems in place were adequate" in respect of determining the plaintiff's allegation that the State failed to implement a safe system of supervision of the detainees and its employees.

While the decision of PG originates from the District Court and is not binding on other judges of the District Court, nor superior courts, it highlights that it is important to carefully scrutinise requests for disclosure, and in particular whether there are genuine grounds to withhold disclosure on the basis of confidentiality and relevance.

Key takeaways

Understanding disclosure frameworks is not merely about compliance, but leveraging them to ensure claims are properly assessed. By mastering the distinct disclosure requirements of PIPA and the UCPR, respondents can better navigate the complexities of institutional abuse cases, avoiding headaches and ensuring they are well-prepared and strategically positioned throughout the litigation process.
In particular, the cases of SDA and PG demonstrate that if the claimant alleges that the respondent has failed to implement a safe system of supervision, documents containing information about other instances abuse perpetrated in similar factual circumstances may be relevant and required to be disclosed.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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