Opinion
The law around disclosure
10th Feb 2022
Disclosure can be a tricky area to navigate, particularly as the rules change depending on whether you are working under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA), the Motor Accident Insurance Act 1994 (Qld) (MAIA) or the Personal Injuries Proceedings Act 2002 (Qld) (PIPA). As Justice Crow recently commented, applying ‘differently worded obligations … means different outcomes.’
The WCRA is arguably the most straightforward Act in this area. The parties have a mutual duty to co-operate and the definition within s279 is clear. The courts have also taken a broad interpretation approach in MAIA and imposed a mutual obligation to co-operate. PIPA, however, has historically been challenging.
In Haug v Jupiters Limited trading as Conrad Treasury Brisbane [2007] QCA 199, the Court of Appeal examined the terminology used in ss27(1)(a)(i) and 27(1)(b)(i) of PIPA. Rather than taking a broad approach as the courts had previously done in MAIA, it was found that the subtle variation of the text in s27 warranted a different outcome. MAIA requires provision of documents and information ‘about the circumstances of the accident’ while PIPA’s requirement is ‘about the incident … to which the claim relates’.
On the face of it, the terminology doesn’t seem so different. However, due to the definition of ‘incident’ in PIPA, the Court decided that the term is a limiting factor and documents or information requested must be in reference to the incident described and particularised in a Claimant’s Part 1 Notice of Claim form.
The law around disclosure for PIPA matters has generally remained conservative. However, the Court of Appeal decision in SDA v Corporation of the Synod of the Diocese of Rockhampton Anor [2021] QCA 172 is a welcome and promising change for plaintiffs. The decision focuses on the proper construction of s27(1)(b)(i), being the provision of information about the circumstances of, or the reasons for, the incident. It was held that this section should have a broader ambit than its MAIA counterpart and includes two categories of information. The first is information about the circumstances and the second is about the reasons for the act, omission or circumstance alleged to have caused all or part of the personal injury. The first refers to facts generally, or what happened, whereas the second refers to particular facts, or why it happened.
There are still plenty of tricks and traps to be aware of. Setting the claim up properly from the outset and thinking about the types of disclosure which might be necessary remains one of the key factors to success.
This is an excerpt from Trying to broaden the narrow scope of s27 of PIPA-disclosure obligations across the board. Catch the full presentation at 11.45am on Saturday 12 February.
Ashleigh Harrison is a Senior Associate at Maurice Blackburn lawyers and an Accredited Specialist in Personal Injury Law. She is currently practising in compensation law in Cairns and specialises in workers compensation, motor vehicle accidents and public liability claims. As well as being a member of the ALA, Ashleigh is the Vice President of the North Queensland Law Association and a member of the Far North Queensland Law Association.
The ALA would like to thank Ashleigh for this contribution.
The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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