DO NOT USE.
The DA is no longer recommended and will be replaced asap, but leaving here for information.
Note on Disclosure Agreements
Disclosure Agreements requiring a responding party to execute a declaration of interests, allegiances, and affiliations before engaging with a formal notice are not recommended as a primary instrument in most matters.
The reason is structural. A Disclosure Agreement creates an obligation only if the other party accepts it. A government agency, ministerial office, or statutory body is under no legal duty to execute a document it did not agree to receive. Silence or refusal carries no legal consequence in itself — it does not create a default, it does not estop the agency from acting, and no court will treat non-execution as an admission. The agency simply ignores it, which is exactly what has occurred here.
Worse, its presence in a formal notice risks allowing the recipient to characterise the entire instrument as non-standard or irregular — providing a pretext for non-engagement that would not otherwise exist.
The Annexure DA remains on the record as evidence of John Henry’s good faith and commitment to transparent engagement. That is its value. It is not an enforceable instrument and should not be relied upon as one.
Where disclosure of conflicts and interests is genuinely required — for example where a decision-maker has a direct financial interest in the outcome — the correct instrument is a challenge to the decision on the ground of actual or apprehended bias, raised in judicial review proceedings before a court of competent jurisdiction. That instrument has teeth. A Disclosure Agreement does not.
Ubi jus, ibi remedium — find the right in a duty the law imposes. A disclosure obligation arises from bias law, not from a letter.
On this page: Inclusion for a matter already in progress | Disclosure Agreement | DA in Word doc
Inclusion — Mutual Disclosure Requirement for Ongoing Matter
Nemo debet esse judex in propria causa. — No one ought to be a judge in their own cause.
Further to the proceedings between the parties in this matter, and given the substantial period over which this matter has been conducted, the Author considers it both prudent and necessary, in the interests of transparency, equity, and the integrity of any further proceedings, that both parties formally establish the basis upon which this matter is to continue.
To that end, the Author encloses Annexure DA — Mutual Disclosure of Affiliations, Oaths, and Allegiances, with Attribution and Calculation of Damages — and requires that the Respondent execute and return the Respondent’s Declaration contained in Part 10 of Annexure DA within ten (10) clear days of the date of this correspondence. Every agent, representative, solicitor, barrister, counsel, or advisor who subsequently becomes involved in this matter on behalf of the Respondent in any capacity must similarly execute and return their own Declaration prior to taking any step in this matter, and in any event no later than five (5) clear days after first being engaged or instructed.
The Author has executed the Author’s declaration contained in Part 1 of Annexure DA, and that declaration is offered openly and on the record as evidence of the Author’s good faith and commitment to proceeding upon equal terms.
Annexure DA shall apply to and govern all further steps in this matter from the date of this correspondence, including but not limited to all further correspondence, filings, submissions, court appearances, tribunal appearances, and any other proceedings of any kind between the parties or their representatives.
The Author draws the Respondent’s attention in particular to the following Parts of Annexure DA:
Part 4, which addresses the effect of non-disclosure upon any claim brought or maintained by the Respondent against the Author, including the voiding ab initio of any such claim where disclosure has not been made;
Part 7, which addresses the consequences of silence, refusal, or resistance to this requirement, including deemed admissions, estoppel by conduct, and the independent obligations of agents and counsel;
Part 8, which establishes the Trigger Date from which all costs, losses, and damages are attributed to the Respondent’s failure to respond substantively, and which sets out the Calderbank operation of this and all further communications; and
Part 9, which reserves the Author’s right to file a formal written demand for disclosure by any adjudicator before submitting to jurisdiction, in accordance with the apprehension of bias test confirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
The Respondent is advised to read each of those provisions carefully before taking any further step in this matter.
Nothing in this requirement is intended to delay the resolution of this matter. To the contrary, it is intended to ensure that any further proceedings are conducted upon a foundation of full and equal transparency, as justice requires. Had the Respondent responded substantively at the outset of this matter, no escalation would have been necessary. The Author remains willing to resolve this matter directly and without further escalation, provided that resolution proceeds upon the equal and transparent basis this Agreement establishes.
Mutual Disclosure of Affiliations, Oaths, and Allegiances, with Attribution and Calculation of Damages
Aequitas sequitur legem. — Equity follows the law.
Preamble
This Agreement is entered into for the purpose of ensuring that all parties to this matter proceed upon a foundation of full, frank, and equal disclosure. No party shall be required to submit to any process, agreement, determination, or proceeding in which another party holds an undisclosed obligation, allegiance, commitment, interest, or benefit arising from any source whatsoever, whether public or private, that may influence the conduct, outcome, or integrity of this matter.
This Agreement proceeds upon the principle that all parties stand equal before the law, and that justice requires transparency of interest, obligation, allegiance, and legal advantage from all who participate. This principle extends to any benefit, immunity, power, or right conferred upon any party by or under any private Act of any Parliament of the Commonwealth of Australia or of any State or Territory, whether or not that Act is readily discoverable upon a standard search of public legislative registers.
The requirement of full disclosure before any party may participate in or prosecute a matter is not a novel imposition. It is a principle with deep historical and legal roots.
John Quincy Adams, sixth President of the United States and a practising jurist, addressed this directly in his Letters on the Masonic Institution (1847), written in the aftermath of the documented suppression of the Morgan investigation by Masonic officeholders. Adams stated that there is nothing in the mysteries of Freemasonry that may not be justly deemed material to the issue before a court or legislature, and that of its materiality the judges and legislators have the exclusive right to decide. His position was unequivocal: secret affiliations held by those participating in judicial or legislative proceedings are material facts, not private matters, and their concealment subverts the administration of justice.
President John F. Kennedy, in his address to the American Newspaper Publishers Association on 27 April 1961 – the full text and audio of which are preserved in the John F. Kennedy Presidential Library – stated that the very word “secrecy” is repugnant in a free and open society, and that a free people are inherently and historically opposed to secret societies, to secret oaths, and to secret proceedings. That statement of public policy principle, made by a head of state from the public record, reflects the same foundational value this Agreement gives effect to: that those who participate in proceedings affecting the rights of others must do so without concealed allegiances, concealed obligations, or concealed interests of any kind.
In Australian law, the High Court of Australia confirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 that the test for disqualification of any adjudicator is whether a fair-minded lay observer might reasonably apprehend that the adjudicator might not bring an impartial mind to the resolution of the matter. That test applies to undisclosed affiliations, undisclosed obligations, and undisclosed interests of precisely the kind this Agreement requires to be disclosed. Part 9 of this Agreement gives practical effect to that principle by reserving the Author’s right to place a formal demand for disclosure upon any adjudicator before submitting to jurisdiction.
The Author has made the declarations required by Part 1 of this Agreement openly and on the record. The Author holds no undisclosed affiliation, oath, allegiance, or private Act interest. The Author asks no more of the Respondent than the Author has freely given. This is the level playing field upon which alone this matter can justly proceed.
Part 1 — Disclosure by the Author
I, ________________________, of ________________________, being the Author of and party to this matter, do hereby declare, openly and on the record, that:
(a) I am not a member of, nor affiliated with, nor bound by any oath, obligation, or allegiance to, Freemasonry in any form or degree, including but not limited to the Craft degrees, the Scottish Rite, the York Rite, the Royal Arch, or any concordant, appendant, or affiliated Masonic body;
(b) I am not a member of, nor affiliated with, any secret society, secret order, or secret fraternity of any kind, whether esoteric, occult, chivalric, religious, quasi-religious, political, or commercial;
(c) I am not bound by any oath, obligation, or undertaking requiring me to maintain secrecy regarding membership, proceedings, rituals, signs, words, tokens, or communications of any organisation or any of its members;
(d) I am not bound by any allegiance, obedience, or adherence to any organisation, body, or governing council whose requirements conflict or may conflict with any duty owed to the public, to the Crown, to any court, or to any other person;
(e) I am not bound by any commitment, whether express or implied, to act in favour of, or to protect, any person by reason of shared membership in any organisation, society, or order;
(f) I hold no membership in any body that requires its members to prefer fellow members in professional, judicial, commercial, or public dealings, whether openly or covertly;
(g) I am not under any prohibition, whether arising from oath, obligation, rule, or custom, that prevents me from making full and truthful disclosure in this matter;
(h) I do not hold, and am not aware of holding, any right, immunity, power, privilege, or benefit conferred by or under any private Act of any Parliament of the Commonwealth of Australia or of any State or Territory that is relevant to or may affect this matter.
This declaration is made truthfully, without evasion, equivocation, or mental reservation of any kind.
Author’s autograph: ________________________
Date: ________________________
Part 2 — Timing of Disclosure by the Respondent and All Agents and Counsel
2.1 Disclosure is a Condition Precedent
The disclosure required under this Agreement is not merely a formality. It is a condition precedent to any participation in, response to, or engagement with this matter by the Respondent, and by every agent, representative, solicitor, barrister, counsel, or advisor acting on behalf of the Respondent.
2.2 When Disclosure Must Be Made
Disclosure under this Agreement must be made:
(a) in full, in writing, and in the form required by clause 3.4, prior to or together with the Respondent’s first response, submission, filing, appearance, or communication in connection with this matter, howsoever described or characterised;
(b) before any agent, representative, solicitor, barrister, counsel, or advisor takes any step whatsoever on behalf of the Respondent in this matter, including but not limited to filing documents, making submissions, issuing correspondence, or appearing before any court, tribunal, or body;
(c) no later than ten (10) clear days of service of this Agreement upon the Respondent, time being of the essence.
2.3 Continuing Obligation
The obligation to disclose is a continuing one. Should any circumstance arise after initial disclosure that would require disclosure under Part 3 of this Agreement, the Respondent and all agents and counsel must make supplementary disclosure immediately and without delay. This continuing obligation applies to all subsequent responses, filings, submissions, appearances, and communications in this matter from the date of this Agreement onwards.
2.4 Deemed Non-Disclosure
Where the Respondent, or any agent, representative, solicitor, barrister, counsel, or advisor acting for the Respondent, takes any step in this matter without having first complied with clauses 2.2 and 3.4, that person shall be deemed to have failed to disclose, and the consequences set out in Parts 4, 5, and 7 shall apply accordingly.
Part 3 — Scope of Required Disclosure by the Respondent and All Agents and Counsel
3.1 Scope of Required Disclosure — Affiliations, Oaths, and Allegiances
Each person bound by this Agreement must disclose, without reservation or evasion, any current or past membership of, affiliation with, initiation into, or obligation to any organisation, society, order, fraternity, brotherhood, sisterhood, lodge, chapter, council, or body of any kind, whether incorporated or unincorporated, that requires or has required of its members any of the following:
(a) an oath, affirmation, obligation, or undertaking of any kind, whether sworn on a sacred text, taken by word of mouth, or entered into by conduct or ceremony;
(b) an agreement, whether express or implied, to maintain secrecy regarding membership, proceedings, rituals, signs, words, tokens, or communications of the organisation or any of its members;
(c) an allegiance, obedience, or adherence to the organisation, its officers, its governing body, its laws, or its aims, whether or not such allegiance conflicts or may conflict with any duty owed to the public, to the Crown, to any court, or to any other person;
(d) a commitment to act, or to refrain from acting, in any manner that may benefit, protect, or favour another member of the organisation by reason of that membership, whether in a professional, judicial, commercial, or public capacity;
(e) a prohibition on disclosing any matter to a non-member, including but not limited to the existence, content, or purpose of any oath, obligation, or undertaking taken by the disclosing person or any other member.
3.2 Organisations to Which Clause 3.1 Applies
Without limiting the generality of clause 3.1, this disclosure requirement applies to membership of or affiliation with:
(a) Freemasonry in any form, including but not limited to the Craft degrees (Entered Apprentice, Fellowcraft, Master Mason), the Scottish Rite, the York Rite, the Royal Arch, the Order of the Eastern Star, the Shriners, and any other concordant, appendant, or affiliated body;
(b) any other fraternal, initiatory, esoteric, occult, chivalric, or secret order;
(c) any political society or organisation requiring secret membership or secret oath;
(d) any religious or quasi-religious body requiring secrecy of membership, ritual, or obligation;
(e) any professional, trade, or commercial association that requires its members to prefer fellow members in dealings of any kind, whether openly or covertly.
3.3 Scope of Required Disclosure — Private Acts
Each person bound by this Agreement must additionally disclose, without reservation or evasion, any right, immunity, power, privilege, protection, or benefit of any kind that the disclosing party holds, or reasonably believes they may hold, by reason of or under any private Act of any Parliament of the Commonwealth of Australia or of any State or Territory, where that right, immunity, power, privilege, protection, or benefit is or may be relevant to this matter.
For the purposes of this clause, a private Act means any Act of Parliament that applies to a specific named person, institution, body, locality, or class of persons rather than to the public generally, including but not limited to:
(a) Acts incorporating or regulating a specific named institution, company, trust, religious body, or association;
(b) Acts conferring specific rights over land, property, or resources upon a named party;
(c) Acts granting immunities, exemptions, or privileges to a named party or class of parties;
(d) Acts regulating the affairs of a specific named body in a manner that affects its legal powers, obligations, or immunities in connection with this matter;
(e) any Act that, though not prominently indexed or readily discoverable upon a standard search of public legislative registers, confers upon the disclosing party any advantage, right, or immunity in connection with this matter.
The disclosing party is not excused from disclosure under this clause on the ground that the relevant private Act is obscure, historical, not consolidated, or not readily discoverable upon a standard search of public legislative registers. The obligation to disclose applies to all private Acts within the disclosing party’s knowledge or reasonable contemplation, whether or not that party has independently verified the current force and effect of the relevant Act.
3.4 Form of Disclosure
Disclosure under this Part must be made in writing, signed personally by the disclosing party, and must include:
(a) the full name of each organisation, body, or Act to which disclosure is made;
(b) in the case of affiliations and oaths — the date or approximate date of initiation, joining, or entry into any obligation, the nature and extent of the obligations, oaths, or allegiances undertaken, whether any such obligation remains current and binding, and whether any such obligation requires the disclosing party to withhold information from or act in favour of any other person;
(c) in the case of private Acts — the title and jurisdiction of the relevant Act, the nature of the right, immunity, power, privilege, protection, or benefit conferred, and the manner in which that right, immunity, power, privilege, protection, or benefit is or may be relevant to this matter;
(d) confirmation that the disclosing party has made reasonable inquiry to identify any private Act that may be relevant to this matter, including by searching the relevant legislative register, examining the constituting instruments of any institution involved, and considering any savings or transitional provisions in relevant public Acts.
Part 4 — Claims by the Respondent Against the Author
4.1 Disclosure as a Condition of Any Claim
Where the Respondent has made, makes, or purports to make any claim, demand, action, application, complaint, or proceeding of any kind against the Author, whether arising before or after the date of this Agreement, that claim, demand, action, application, complaint, or proceeding is subject to the disclosure requirements of this Agreement as a condition of its validity.
4.2 Claims Void Ab Initio
Any claim, demand, action, application, complaint, or proceeding brought or maintained by the Respondent against the Author shall be void ab initio — that is, void from its inception as though it never existed — where:
(a) the Respondent has failed to make disclosure in accordance with Parts 2 and 3 of this Agreement prior to or at the time of bringing or maintaining that claim;
(b) the Respondent has made partial, incomplete, or false disclosure, whether by omission, evasion, equivocation, or mental reservation, at any time prior to or during the bringing or maintenance of that claim;
(c) any agent, representative, solicitor, barrister, counsel, or advisor acting for the Respondent in connection with that claim has failed to make disclosure in accordance with Parts 2 and 3 of this Agreement prior to taking any step in connection with that claim;
(d) disclosure was made but was subsequently found to be false, incomplete, or misleading in any material respect; or
(e) the Respondent, or any agent, representative, solicitor, barrister, counsel, or advisor acting for the Respondent, has failed to disclose any private Act conferring a right, immunity, power, privilege, protection, or benefit relevant to this matter, whether or not that failure was intentional.
4.3 No Retrospective Cure
Where a claim is void ab initio under clause 4.2, subsequent disclosure by the Respondent or by any agent, representative, or counsel does not cure or revive that claim. The voiding of the claim is absolute and not subject to remedy by late or supplementary disclosure.
4.4 Pre-existing Claims
Where the Respondent has brought or purported to bring any claim, demand, action, application, complaint, or proceeding against the Author prior to the date of this Agreement, that claim is equally subject to the disclosure requirements of this Agreement. The Respondent must comply with the disclosure requirements of Parts 2 and 3 within the time specified in clause 2.2(c). Failure to do so shall render any such pre-existing claim void ab initio on the same basis as a claim brought after the date of this Agreement.
4.5 Author’s Rights Preserved
The voiding of any claim under this Part does not limit or extinguish any right, remedy, or cause of action available to the Author arising from or connected with the subject matter of this Agreement, at law or in equity.
Part 5 — Effect of Non-Disclosure, Partial Disclosure, or False Disclosure
Each party to this Agreement, including the Respondent and all agents and counsel, is hereby put on notice that:
(a) any failure to disclose, whether by omission, evasion, equivocation, or mental reservation of any kind, shall be treated as a fundamental breach of the condition upon which this matter proceeds;
(b) upon discovery of any non-disclosure, partial disclosure, or false disclosure by any party, or by any agent or counsel of any party, this matter shall, at the election of the Author, be rendered immediately null, void, and of no force or effect, as though it had never been entered into;
(c) no action, agreement, determination, order, or proceeding arising from or connected with this matter shall be enforceable against the Author where non-disclosure, partial disclosure, or false disclosure by the Respondent or the Respondent’s agents or counsel is subsequently established;
(d) where non-disclosure, partial disclosure, or false disclosure is established, the Author reserves all rights to seek such further remedy as may be available at law or in equity;
(e) the Respondent accepts that any agent, representative, solicitor, barrister, counsel, or advisor who fails to make the disclosure required by this Agreement is disqualified from acting in this matter, and any act, filing, submission, or representation made by such a person, whether before or after the date of this Agreement, is void and of no effect;
(f) where non-disclosure relates to a private Act, the Author reserves the right to bring the existence and non-disclosure of that Act to the attention of any court, tribunal, regulatory authority, or other body before which this matter is conducted, and to seek such orders or directions as may be appropriate in the circumstances.
Part 6 — Acknowledgement by the Respondent
By proceeding with this matter, each Respondent, and each agent, representative, solicitor, barrister, counsel, or advisor acting for the Respondent, acknowledges:
(a) that this Agreement has been read and understood in full;
(b) that full and truthful disclosure has been made in accordance with Parts 2 and 3 above prior to any participation in this matter, or that the disclosing party has no affiliations, oaths, allegiances, or private Act interests to which this Agreement applies;
(c) that the consequences of non-disclosure set out in Parts 4 and 5 are understood and accepted;
(d) that this Agreement constitutes a condition precedent to any participation in, response to, or claim arising from this matter;
(e) that the continuing obligation under clause 2.3 is understood and will be observed in respect of all subsequent responses, filings, submissions, appearances, and communications in this matter;
(f) that the obligation to disclose any relevant private Act has been understood, and that reasonable inquiry has been made to identify any such Act prior to executing this Agreement.
Part 7 — Resistance, Refusal, and Deemed Admission
7.1 Time for Compliance
(a) The Respondent must execute and return the Respondent’s Declaration in Part 9 of this Agreement within ten (10) clear days of service of this Agreement upon the Respondent. Time is of the essence.
(b) Every agent, representative, solicitor, barrister, counsel, or advisor who subsequently becomes involved in this matter on behalf of the Respondent in any capacity, whether by way of drafting, advising, corresponding, filing, appearing, or otherwise contributing to any response or step taken in this matter, must execute and return the Respondent’s Declaration prior to taking that first step, and in any event no later than five (5) clear days after first being engaged or instructed in connection with this matter. Time is of the essence.
(c) For the avoidance of doubt, the obligation in clause 7.1(b) attaches to each person individually at the time they first become involved, and is not satisfied by the prior compliance of any other person, including the Respondent or any other agent, representative, or counsel.
(d) No person to whom clause 7.1(b) applies may take any step in this matter, however minor or preparatory, prior to executing and returning their own Declaration.
7.2 Consequences of Silence or Non-Response
Where the Respondent fails to execute and return the Respondent’s Declaration within the time required by clause 7.1, that failure shall, without further notice or demand by the Author, be treated as and deemed to constitute:
(a) an admission that the Respondent holds one or more affiliations, oaths, or allegiances of the kind described in clause 3.1 of this Agreement;
(b) an admission that the Respondent holds, or may hold, one or more rights, immunities, powers, privileges, protections, or benefits under a private Act relevant to this matter, and that full disclosure of those interests has not been and cannot be made;
(c) an admission that full disclosure of all matters required by Part 3 of this Agreement has not been and cannot be made;
(d) an agreement by conduct that this matter, and any claim brought or maintained by the Respondent against the Author, is void ab initio in accordance with Part 4 of this Agreement;
(e) acceptance of all consequences set out in Parts 4, 5, and 8 of this Agreement as though the Respondent had expressly agreed to them.
The Author will proceed on the basis of these deemed admissions accordingly.
7.3 Consequences of Refusal
Where the Respondent expressly refuses to execute the Respondent’s Declaration, or raises any objection to the requirement to do so, that refusal or objection shall be treated in the same manner as silence under clause 7.2. Additionally:
(a) refusal to declare that one holds no undisclosed affiliation, oath, allegiance, or private Act interest is itself evidence from which the Author is entitled to draw the inference that such affiliation, oath, allegiance, or interest exists;
(b) no objection to the form, validity, or enforceability of this Agreement shall be entertained from any party who has not first complied with the disclosure requirements of Parts 2 and 3, as a party who holds an undisclosed interest does not come with clean hands and is not in a position to challenge the Agreement;
(c) any purported challenge to this Agreement by a non-disclosing party is itself a step in the matter and triggers the deemed admission under clause 7.2.
7.4 Estoppel by Conduct
Any Respondent, agent, representative, solicitor, barrister, counsel, or advisor who takes any step in this matter — including but not limited to filing any document, issuing any correspondence, making any submission, or appearing before any court, tribunal, or body — without having first complied with this Agreement, is estopped from:
(a) denying that this Agreement applies to them;
(b) denying that the deemed admissions in clause 7.2 have taken effect;
(c) asserting that any claim brought or maintained by the Respondent is valid and subsisting;
(d) relying upon any right, immunity, power, privilege, protection, or benefit conferred by any private Act that was not disclosed in accordance with clause 3.3.
The estoppel arising under this clause is a continuing estoppel and applies to all subsequent steps taken in this matter.
7.5 Independent Obligation of Agents and Counsel
The obligation to disclose under this Agreement is imposed upon each agent, representative, solicitor, barrister, counsel, and advisor independently of the Respondent’s own obligation. An agent or counsel who proceeds in this matter without personally executing the Respondent’s Declaration:
(a) acts in breach of this Agreement in their personal capacity;
(b) renders any step taken by them in this matter void and of no effect;
(c) assumes personal responsibility for any loss, damage, or prejudice suffered by the Author arising from their non-compliant participation in this matter;
(d) may be referred by the Author to any relevant professional disciplinary body, regulatory authority, or court, together with a record of their failure to disclose, for such action as that body may consider appropriate.
7.6 Record and Publication
The Author reserves the right to:
(a) retain a complete record of this Agreement, all disclosures made or not made, all refusals, and all steps taken by any party in this matter without prior compliance;
(b) place that record before any court, tribunal, regulatory authority, or professional disciplinary body as may be relevant;
(c) make that record available on the public record to the extent permitted by law, where doing so serves the public interest in transparency and the proper administration of justice.
No party to this Agreement shall have any claim against the Author arising from the exercise of the rights reserved under this clause, provided the Author acts in good faith and within the law.
7.7 No Waiver
No act, omission, extension of time, or indulgence granted by the Author shall constitute a waiver of any right under this Agreement. The Author’s rights are cumulative and are not diminished by any failure to enforce them immediately upon breach.
Part 8 — Attribution and Calculation of Damages Arising from Non-Disclosure and Failure to Respond Substantively
Qui tacet consentire videtur ubi loqui debuit ac potuit. — He who is silent, when he ought to have and could have spoken, is taken to agree.
8.1 Purpose
This Part establishes the basis upon which damages, costs, losses, and liabilities shall be attributed to and calculated against any Respondent, agency, or party who fails to make full disclosure in accordance with this Agreement, or who fails to respond substantively to a request, notice, or communication from the Author in connection with this matter, where that failure causes or contributes to the escalation of this matter beyond the point at which it could and should have been resolved.
8.2 The Trigger Date
(a) For the purposes of this Part, the Trigger Date is the date upon which the Respondent, agency, or party first failed to respond substantively to a request, notice, or communication from the Author in connection with this matter.
(b) A response is not substantive for the purposes of this Part if it:
(i) acknowledges receipt without addressing the substance of the request, notice, or communication;
(ii) defers, delays, or redirects without providing the information or disclosure sought;
(iii) is made by a person who has not complied with the disclosure requirements of this Agreement;
(iv) is incomplete, evasive, or materially misleading in any respect; or
(v) purports to respond but does not address the specific matters raised.
(c) The Trigger Date shall be recorded by the Author in writing at or as soon as practicable after the date it arises, and that record shall be prima facie evidence of the Trigger Date for the purposes of this Part.
8.3 Attribution of Escalation Costs and Losses
The Respondent acknowledges and agrees that:
(a) if the Respondent had responded substantively and made full disclosure from the outset of this matter, this matter would not have required escalation beyond that initial communication;
(b) all costs, losses, liabilities, damages, and expenses incurred by any party, including the Respondent itself, from and after the Trigger Date are caused by and attributed entirely to the Respondent’s failure to respond substantively and to make full disclosure;
(c) the Respondent is liable to the Author for all such costs, losses, liabilities, damages, and expenses on a “but for” basis — that is, but for the Respondent’s failure, those costs, losses, liabilities, damages, and expenses would not have been incurred; and
(d) the Respondent has no standing to seek, claim, or recover costs of any kind against the Author in connection with any escalation of this matter, as any such costs are the direct and foreseeable consequence of the Respondent’s own failure. Any costs order sought by the Respondent against the Author shall be met with this attribution, and the Author reserves the right to set off any such claim against the full costs, losses, and damages recoverable from the Respondent from the Trigger Date.
8.4 Heads of Damage
The costs, losses, liabilities, damages, and expenses attributable to the Respondent under this Part include, without limitation:
(a) all legal costs and disbursements incurred by the Author from and after the Trigger Date, calculated on an indemnity basis;
(b) all costs of preparing, filing, serving, or pursuing any document, application, submission, or proceeding necessitated by the escalation of this matter beyond the Trigger Date;
(c) all costs of obtaining legal, professional, or expert advice made necessary by the escalation of this matter;
(d) all time reasonably spent by the Author or the Author’s representatives in connection with the escalation of this matter, calculated at a reasonable rate to be determined by reference to the nature of the matter and the time expended;
(e) all out-of-pocket expenses, travel costs, communication costs, and administrative costs incurred in connection with the escalation of this matter;
(f) any loss of opportunity, loss of income, or other consequential loss suffered by the Author as a result of the escalation of this matter; and
(g) interest on all of the above, calculated from the Trigger Date to the date of payment, at the rate applicable under the relevant court rules or, in the absence of such a rate, at the rate of [insert rate] per annum.
8.5 Pre-Agreed Accumulating Liability
(a) In recognition of the ongoing and compounding nature of the harm caused by the Respondent’s failure to disclose and respond substantively, the parties agree that from and after the Trigger Date a pre-agreed liability shall accumulate in favour of the Author at the rate of $[insert amount] per day [or per week — select as appropriate] for each day [or week] that the Respondent’s failure to disclose or respond substantively continues unremedied.
(b) This pre-agreed accumulating liability is a genuine pre-estimate of the harm caused to the Author by the ongoing failure of the Respondent, and is not intended as a penalty. It reflects the ongoing cost, inconvenience, loss of time, and prejudice suffered by the Author as a direct consequence of the Respondent’s continued non-compliance.
(c) The accumulating liability under this clause ceases upon the date that the Respondent makes full and compliant disclosure in accordance with this Agreement and provides a substantive response to all outstanding requests, notices, and communications from the Author, to the satisfaction of the Author acting reasonably.
(d) The total accumulated liability under this clause shall be in addition to, and not in substitution for, any other damages, costs, or losses recoverable by the Author under this Part or otherwise.
8.6 Indemnity Costs
(a) All costs incurred by the Author from and after the Trigger Date shall be recoverable from the Respondent on an indemnity basis.
(b) Indemnity costs means all costs actually and reasonably incurred by the Author in connection with this matter from and after the Trigger Date, without the discounting that applies to party-party costs assessed on the standard basis.
(c) The Author’s entitlement to indemnity costs arises from the Respondent’s unreasonable failure to respond substantively and to make full disclosure, which failure rendered all subsequent escalation necessary and unavoidable.
8.7 Calderbank Operation
This Agreement, and each communication from the Author to the Respondent in connection with this matter, is to be treated as a Calderbank offer in that each such communication represents a reasonable opportunity for the Respondent to resolve this matter without further escalation. Should the Respondent fail to accept that opportunity and subsequently achieve no better result than the Author’s stated position in any proceeding, the Respondent shall bear the Author’s costs of those proceedings on an indemnity basis from the date of the relevant communication, in addition to bearing its own costs in their entirety. The Respondent’s own costs of any such proceedings shall not be recoverable against the Author, as those costs are attributed to the Respondent’s own failure in accordance with clause 8.3.
8.8 Interest
(a) Interest shall accrue on all sums due to the Author under this Part from the Trigger Date to the date of payment.
(b) Interest shall be calculated at the rate applicable under the rules of the court or tribunal before which this matter is conducted, or, if the matter is not before a court or tribunal, at the rate of [insert rate] per annum compounding [monthly / quarterly — select as appropriate].
(c) The Author’s entitlement to interest under this clause is without prejudice to any entitlement to interest arising under statute, at common law, or in equity.
8.9 Record Keeping
(a) From and after the Trigger Date, the Author shall maintain a running record of all costs, losses, liabilities, damages, and expenses incurred in connection with the escalation of this matter, including dates, amounts, and a brief description of each item.
(b) That record shall be made available to any court, tribunal, or body before which this matter is conducted, and shall constitute prima facie evidence of the costs, losses, liabilities, damages, and expenses incurred by the Author from and after the Trigger Date.
(c) The Respondent shall not be heard to challenge the accuracy of that record without first having complied with the disclosure requirements of this Agreement.
8.10 Preservation of Rights
(a) Nothing in this Part limits or extinguishes any right, remedy, or cause of action available to the Author at law or in equity arising from the Respondent’s failure to disclose or respond substantively.
(b) The Author’s rights under this Part are cumulative and may be exercised in addition to, and not in substitution for, any other rights or remedies available to the Author.
(c) The exercise or non-exercise of any right under this Part does not constitute a waiver of any other right, and no indulgence or extension of time granted by the Author shall diminish the Author’s rights under this Part.
Part 9 — Disclosure by Adjudicators
Nemo debet esse judex in propria causa. — No one ought to be a judge in their own cause.
9.1 Application
Where this Agreement, or any matter arising from or connected with it, comes before any court, tribunal, administrative body, or adjudicator of any kind, the Author reserves the right to file a formal written demand for disclosure prior to submitting to the jurisdiction of that court, tribunal, body, or adjudicator.
9.2 Formal Written Demand
The Author may, before taking any further step in any proceeding, serve upon the adjudicator a formal written demand requiring the adjudicator to disclose:
(a) any current or past membership of, or affiliation with, any organisation, society, order, or body of the kind described in clause 3.1 of this Agreement;
(b) any private oath, obligation, or undertaking of the kind described in clause 3.1 of this Agreement;
(c) any private Act interest of the kind described in clause 3.3 of this Agreement;
(d) any other matter that could give rise to a reasonable apprehension of bias within the meaning of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (High Court of Australia).
9.3 Effect of the Demand
The filing of such a demand places the adjudicator in the position of being required to:
(a) make the requested disclosure on the public record;
(b) recuse from the matter on the grounds of apprehension of bias; or
(c) decline to disclose and decline to recuse, in which case that refusal is itself placed on the public record and reserved by the Author as grounds for appeal, review, or complaint to the relevant judicial conduct body.
9.4 No Submission to Jurisdiction
The Author does not submit to the jurisdiction of any court, tribunal, or adjudicator in this matter until the disclosure required by clause 9.2 has been made or the adjudicator has formally declined to make it, and the Author’s position in relation to that refusal has been recorded.
9.5 Public Record
All demands made under this Part, all responses or non-responses, and all refusals shall be retained by the Author and may be placed on the public record to the extent permitted by law.
Part 10 — Respondent’s Declaration
I, ________________________, of ________________________, in my capacity as [Respondent / Agent / Counsel — delete as applicable], do hereby declare that:
(a) I have read and understood this Agreement in its entirety;
(b) the disclosure made by me above is true, complete, and made without evasion, equivocation, or mental reservation of any kind;
(c) I have disclosed all affiliations, oaths, and allegiances to which clause 3.1 of this Agreement applies, or I have no such affiliations, oaths, or allegiances to disclose;
(d) I have made reasonable inquiry to identify any private Act of any Parliament of the Commonwealth of Australia or of any State or Territory that may confer upon me any right, immunity, power, privilege, protection, or benefit relevant to this matter, and I have disclosed all such Acts in accordance with clause 3.3, or I am not aware of holding any such right, immunity, power, privilege, protection, or benefit under any private Act;
(e) I understand and accept the consequences of non-disclosure, partial disclosure, or false disclosure as set out in Parts 4, 5, and 7 of this Agreement;
(f) I understand and accept the attribution and calculation of damages set out in Part 8 of this Agreement as a fair and reasonable consequence of any failure to disclose or respond substantively from the Trigger Date;
(g) this declaration applies to and governs all subsequent responses, communications, and steps taken by me in this matter from the date hereof.
Respondent’s autograph/signature: ________________________
Name: ________________________
Capacity: ________________________ Date: ________________________
Author’s Sign-off
By: ________________________ John Henry, of the family Doe
All Rights Reserved
Annexure DA — Mutual Disclosure of Affiliations, Oaths, and Allegiances, with Attribution and Calculation of Damages
Note: This is a draft for your review and adaptation. It is not legal advice. The enforceability of specific provisions, including the void ab initio clause, the deemed admission clause, the estoppel provisions, the private Acts disclosure requirement, the pre-agreed accumulating liability clause, and the adjudicator disclosure provisions, will depend upon the nature of the proceeding and the applicable jurisdiction. The daily or weekly rate, interest rates, and time limits should be inserted with care and ideally with legal advice. The recusal mechanism in Part 9 is grounded in the apprehension of bias test confirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, but procedural requirements for recusal applications vary between courts and tribunals. Consider having this Agreement reviewed by a qualified legal practitioner familiar with the relevant jurisdiction before use in any formal proceeding.
The above in a Word docx file 2026DisclosureAgreementShareMay2026 (docx)
Earlier version from March 2026: 2026DisclosureAgreementShareMarch2026 (docx)
Last Updated 3 months ago
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