Tough Sanctions if Non-Disclosure
For the first time, a Qld Court has been asked to decide whether a party should be allowed to rely upon a document in litigated proceedings where it was not disclosed during the PIPA process. The answer, it appears, is that parties and their lawyers withhold documents at their peril.
Newson v Aust Scan Pty Ltd t/a Ikea Springwood & Ors l [2010] QSC 223 – Supreme Court judgment delivered 30 June 2010
The plaintiff suffered serious injuries when he was crushed between a truck and a loading dock at the defendant’s business premises at Springwood in 2004. He brought a PIPA claim, which proceeded to compulsory conference on 5 June 2009. The matter failed to settle and mandatory final offers exchanged. Proceedings were then commenced in the Supreme Court.
In its defence, the defendant made reference to a document called “Goods receiving at the Ikea store – Think Safety”. The existence of this document was not revealed to the plaintiff until it was referred to in the defence, delivered in August 2009.
The defendant’s solicitors assumed responsibility for the non-disclosure. The partner at the law firm concerned said that the document was not in her client’s possession when the initial list of documents served during the PIPA process was compiled. She was not provided with a copy until 9 October 2007. However, notwithstanding the fact that the document was in their possession prior to the compulsory conference, it was not disclosed.
The plaintiff argued that the non-disclosure was so serious that the defendant should not be allowed to use the documents at all in the proceedings. The defendant asked the Court to exercise its discretion under Section 32 of PIPA which says:
“…the document cannot be used by the party [who does not disclose it] in a subsequent court proceeding based on the claim…unless the court orders otherwise.”
The Supreme Court found that the defendant could not rely upon the undisclosed document.
Although conceding that the plaintiff was unlikely to suffer significant prejudice if the discretion was exercised, the Court referred to the “deliberate choice” of the legislature to visit “serious, even draconian, consequences upon the defaulting party” in the event of non-disclosure.
The defendant had had over 18 months in which to disclose the document. Its solicitors had produced no evidence as to why, when they had an obligation in preparing for the compulsory conference to ensure disclosure was complete, they had failed to disclose it or what due diligence and care they had exercised in this regard. In these circumstances, and in the context of the simple words used in section 32, the Court concluded that to excuse the defendant would set the bar “quite low”.
To download a full text of the decision click here.
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Newson v Aust Scan Pty Ltd t/a Ikea Springwood & Ors l [2010] QSC 223 – Supreme Court judgment delivered 30 June 2010
Facts
The plaintiff suffered serious injuries when he was crushed between a truck and a loading dock at the defendant’s business premises at Springwood in 2004. He brought a PIPA claim, which proceeded to compulsory conference on 5 June 2009. The matter failed to settle and mandatory final offers exchanged. Proceedings were then commenced in the Supreme Court.
In its defence, the defendant made reference to a document called “Goods receiving at the Ikea store – Think Safety”. The existence of this document was not revealed to the plaintiff until it was referred to in the defence, delivered in August 2009.
The defendant’s solicitors assumed responsibility for the non-disclosure. The partner at the law firm concerned said that the document was not in her client’s possession when the initial list of documents served during the PIPA process was compiled. She was not provided with a copy until 9 October 2007. However, notwithstanding the fact that the document was in their possession prior to the compulsory conference, it was not disclosed.
The plaintiff argued that the non-disclosure was so serious that the defendant should not be allowed to use the documents at all in the proceedings. The defendant asked the Court to exercise its discretion under Section 32 of PIPA which says:
“…the document cannot be used by the party [who does not disclose it] in a subsequent court proceeding based on the claim…unless the court orders otherwise.”
Decision
The Supreme Court found that the defendant could not rely upon the undisclosed document.
Although conceding that the plaintiff was unlikely to suffer significant prejudice if the discretion was exercised, the Court referred to the “deliberate choice” of the legislature to visit “serious, even draconian, consequences upon the defaulting party” in the event of non-disclosure.
The defendant had had over 18 months in which to disclose the document. Its solicitors had produced no evidence as to why, when they had an obligation in preparing for the compulsory conference to ensure disclosure was complete, they had failed to disclose it or what due diligence and care they had exercised in this regard. In these circumstances, and in the context of the simple words used in section 32, the Court concluded that to excuse the defendant would set the bar “quite low”.
To download a full text of the decision click here.
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