Organisation of this Consultation Paper
1.49 This Consultation Paper concisely addresses the questions set out in the Terms of Reference. It is divided into five chapters. This chapter provides an introduction to the Inquiry, including the background to the Inquiry, other relevant inquiries and a description of the reform process.
1.50 Chapter 2, Legal Framework for Discovery in the Federal Courts, considers the obligation on a party to discover documents to another party and the range of documents discoverable in civil proceedings in the federal courts. The chapter raises issues about the need for court control over the availability of discovery and limitations on the ambit of discovery in the federal courts. Legislative provisions, court rules, practice notes and significant cases dealing with the discovery of documents are also discussed.
1.51 Chapter 3, Discovery Practices and Procedures in the Federal Courts, examines civil practice and procedure for the discovery of documents in proceedings before the federal courts. Issues about the cost of a discovery process and its proportionality, in terms of the value of the documents sought in the context of the litigation, are explored. In particular, the use of technology in the process of discovering electronically-stored information is considered and the need for strong case management of the discovery stage in litigation are considered.
1.52 Chapter 4, Ensuring Professional Integrity: Practitioner Obligations and Discovery, consists of two parts. The first part begins with a discussion of the key sources of legal ethical obligations in Australia. It then examines the nature and extent of alleged discovery abuse and professional misconduct, including identifying the key legal ethical obligations such conduct breaches, using illustrative examples. A range of proposals are discussed aimed at pre-emptively avoiding such abuse and misconduct. The enforceability of ethical obligations through court and disciplinary procedures is also discussed. The first part of the chapter also examines the role and nature of legal obligations in a changing legal environment, in particular electronic discovery and the applicability of obligations outside traditional courtroom processes. The second part of the chapter examines existing educational requirements in relation to the legal ethical obligations owed by lawyers. It proposes a new approach to the education of lawyers in this area and highlights the need for cultural change.
1.53 Chapter 5, Alternatives to Discovery, considers pre-action protocols, pre-trial oral examinations and other processes that encourage early settlement, and the narrowing of the issues in dispute prior to the commencement of litigation. The chapter draws on recent works by other law reform bodies, as well as practices and procedures in overseas jurisdictions.