Scope of the Inquiry

Terms of Reference

1.36 The Terms of Reference are reproduced at the beginning of this Consultation Paper. The ALRC is directed to consider four main issues:

• the law, practice and management of the discovery of documents in litigation before federal courts;

• ensuring that cost and time required for discovery of documents is proportionate to the matters in dispute;

• to limit the overuse of discovery, reduce the expense of discovery and ensure key documents relevant to the real issues in dispute are identified as early as possible; and

• the impact of technology on the discovery of documents.

1.37 In identifying law reform options to improve the practical operation and effectiveness of discovery of documents, the ALRC is directed to have regard to:

• alternatives to discovery;

• the role of courts in managing discovery, including the courts’ case management

• powers and mechanisms to enable courts to better exercise those powers in the context of discovery;

• implications of the cost of discovery on the conduct of litigation, including means to limit the extent to which discovery gives rise to satellite litigation and the use of discovery for strategic purposes;

• costs issues, for example cost capping, security for discovery costs, and upfront payment; and the sufficiency, clarity and enforceability of obligations on practitioners and parties to identify relevant material as early as possible.

Matters outside the Inquiry

1.38 The term ‘discovery’ is often used in the context of civil court procedure to refer to the various ways in which one party to litigation is able to obtain information and documents held by other parties. It can encompass processes by which parties disclose relevant documents to their opponents and make those documents available for inspection. It may also encompass processes enabling one party to ask the other a series of questions, known as ‘interrogatories’, which the party under interrogation is required to answer, usually on oath or affirmation. The questions are designed to obtain admissions and again to apprise the interrogating party of the case to be met at trial.

1.39 In some jurisdictions, discovery may extend to documents in the possession of third parties. For example, under Order 15A rule 8 of the Federal Court Rules (Cth), the court may order that a person who is not a party, and appears to be in possession of any document which relates to any question in the proceeding, disclose the document to the party seeking discovery.

1.40 It is possible for an applicant to use discovery to assist in identifying potential respondents to a proceeding. In this context, discovery is ‘preliminary’ in the sense that it is obtained before a proceeding for substantive relief is commenced, and is intended to facilitate the commencement of such a proceeding. For example, Order 15A rule 3 of the Federal Court Rules provides specific procedures for persons to attend court for oral examination or to produce documents, for the purposes of identifying the proper respondent.

1.41 Moreover, there are several other procedures available under court rules which, although not strictly encompassed by the term ‘discovery’, further assist in defining the issues in dispute and obtaining evidence for trial. These include: procedures for the inspection and testing of property;^[56] rules which facilitate the obtaining and tendering of expert evidence;^[57] procedures which assist a party to obtain admissions from an opposing party prior to trial;^[58] and the use of the subpoena process to compel the attendance of persons to give evidence at the trial or to produce documents either pre‑trial or at the trial.^[59]

1.42 The Terms of Reference limit the ALRC’s Inquiry to the discovery of documents in litigation before the federal courts. The ALRC is therefore primarily concerned with the disclosure of documents for inspection by one party to another party in proceedings for substantive relief conducted in a federal court. Other discovery procedures—such as interrogatories, preliminary discovery, discovery from non-parties or other means of obtaining information relevant to a proceeding—are not the central focus of this Inquiry.

1.43 However, consideration of options to improve the practical operation and effectiveness of discovery of documents in substantive proceedings may prompt discussion of discovery in its broader sense. For example, the ALRC has been asked to give particular consideration to alternatives to the discovery of documents. Where discovery, other than the exchange of documents between parties, is considered in this Consultation Paper, it is noted at relevant points.

Terminology

1.44 In this Consultation Paper, the terms ‘discovery’ and ‘disclosure’ are used on occasion to distinguish between different procedural requirements for the exchange of documents between parties to civil litigation, as explained below.

Disclosure

1.45 The term ‘disclosure’ is used to describe an obligation, falling on a party to proceedings, to provide documents to another party, which applies independently of any action by the other party and is not contingent on any orders or directions from the court. For example, the Family Law Rules 2004 (Cth)impose a general duty of disclosure on the parties to a family law dispute, from the start of pre-action procedures for the case.^[60] Outside of the family law context, in a number of other jurisdictions, parties may be obliged to disclose documents without any requirement for another party to request disclosure or the court to make such orders. For example, in Queensland, South Australia and the Northern Territory, parties are required to disclose documents within a certain number of days after the close of pleadings.^[61]

Discovery

1.46 The term ‘discovery’ is used to describe the obligation imposed upon a party when another party to the proceeding requires that party to give discovery of documents, usually by filing and serving on that party a notice requiring discovery. In particular, the process of ‘discovery’ may involve the party requiring discovery to obtain orders of the court to serve a notice of discovery. For example, in the Federal Court, the obligation to making discovery is triggered by the service of a notice, with leave of the Court, pursuant to O 15 r 1 of the Federal Court Rules.

Lawyer

1.47 The term ‘lawyer’ is used for the purposes of this Inquiry to include—consistently with s 117 of the uniform Evidence Acts—barristers, solicitors and, unless specifically stated, lawyers with or without a current practising certificate.

Legal ethical obligations

1.48 The term ‘legal ethical obligations’ is used in this Consultation Paper to reflect that ethical and legal rules relating to discovery practice are not mutually exclusive. It is used as an expression to refer to the more general professional and ethical duties placed on lawyers, over and above those specifically developed to govern legal practice, acknowledging the distinction often made between rules that are professionally binding on a lawyer—ethical rules—and rules that are legally binding—legal rules.