Themes

1.24 As a brief introduction to the key themes articulated throughout this Consultation Paper and informing the Inquiry, this section summarises the underlying rationale and development of the doctrine of discovery and provides a distillation of the tensions that are evident throughout.

Rationale

1.25 As noted by Professor Camille Cameron and Jonathan Liberman, discovery has ‘a long history in common law systems’, and its centrality to the fact-finding and decision-making processes ‘have long been recognised’.

The primary aim of discovery is to ensure that litigants disclose to each other all relevant, non-privileged documents, whether that disclosure helps or hurts their respective cases, so that they will know the case they have to meet and judges will have the evidence they need to do their job effectively.[47]

1.26 The doctrine of discovery derives from early Chancery practice.[48] The responsibility of providing discovery was described in a leading 19th century text on the subject, by Edward Bray:

However disagreeable it may be to make the disclosure, however contrary to his personal interests, however fatal to the claim upon which he may have insisted, he is required and compelled, under the most solemn sanction, to set forth all he knows, believes or thinks in relation to the matters in question ... In fact, one of the chief purposes of discovery is to obtain from the opponent an admission of the case made against him.[49]

1.27 Bray explained that a party was entitled to discovery for the following purposes:

to ascertain facts material to the merits of his case, either because he could not prove them, or in aid of proof and to avoid expense; to deliver him from the necessity of procuring evidence; to supply evidence or to prevent expense and delay in procuring it; to save expense and trouble; to prevent a long enquiry and to determine the action as expeditiously as possible; whether he could prove them aliunde or not; to facilitate proof or save expense.[50]

1.28 Common law processes were much more limited, and the methods for getting the evidence of facts in issue before the courts were ‘most rudimentary’.[51] Equity helped ‘to combat the rigidity of the law’, in particular by coming to grant discovery in aid of proceedings on the common law side.[52]

In chancery ... discovery was of the very essence of the bill. Every bill for relief in equity was, in reality, a bill for discovery.[53]

1.29 The key elements of Chancery’s discovery procedure, as described by Bray, were to facilitate fact-finding, to save time and to reduce expense. The modern law of discovery reflects the same rationale:

The truth-seeking purposes of discovery in the Court of Chancery continue to be a cornerstone of the modern discovery process. In addition to this truth-seeking function, early commentaries and cases show that parties were entitled to discovery in order to avoid the expense and delay that would result if they had to look for the documents themselves. Inclusion of discovery in the post-Judicature Acts rules of civil procedure was intended to reflect and advance the philosophy behind the Judicature Acts, especially to simplify procedure, to avoid trial by ambush and to increase the prospect of a court deciding a matter on the merits rather than on a technicality. Among the potentially beneficial attributes of the modern common law discovery process are: it assists the parties to prepare for trial; it facilitates settlement; it can (but often does not) reduce time and expense and provide relief for overcrowded court dockets; it may result in narrowing the issues in dispute; and it ‘may prevent a party being taken by surprise at trial and enable the dispute to be determined upon its merits rather than by mere tactics’.[54]

1.30 The underlying rationale of fairness, even within the context of litigation which is adversarial, was identified by Lord Donaldson MR in Davies v Eli Lilly & Co in describing the nature of the right to seek discovery:

The right is peculiar to the common law jurisdictions. In plain language, litigation in this country is conducted ‘cards face up on the table’. Some people from other lands regard this as incomprehensible. ‘Why’, they ask, ‘should I be expected to provide my opponent with the means of defeating me?’ The answer, of course, is that litigation is not a war or even a game. It is designed to do real justice between opposing parties and, if the court does not have all the relevant information, it cannot achieve this object.[55]

1.31 In the contemporary context the rationale of discovery as reflected in its history, noted above, is captured in s 37M of the Federal Court of Australia Act 1976 (Cth), which articulates the ‘overarching purpose’ of civil practice and procedure in the Court:

(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

(2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a) the just determination of all proceedings before the Court;

(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c) the efficient disposal of the Court’s overall caseload;

(d) the disposal of all proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

Tensions

1.32 There are several areas of tension that present challenges in this Inquiry. These arise between policy objectives, parties involved in civil litigation before federal courts, as well as with respect to the professional obligations owed by lawyers. For example, there is an inherent tension between the party requesting discovery, who seeks to ascertain facts material to the case, and the party giving discovery, who bears the burden of retrieving, reviewing and disclosing documents in response to discovery requests. This tension is reflected particularly in Chapter 3, which discusses the practice and procedure of discovery in federal courts.

1.33 There is also a tension between the key obligations owed by a lawyer, specifically between a lawyer’s duty to a client—to represent and protect the best interests of a client—and the overarching duty to the court in the interests of the administration of justice. In a broader sense a tension also arises between the drive to reduce the public costs of justice through a reduction in the time that litigation occupies the courts and the right of a litigant to pursue their rights to achieve justice under the law.

1.34 There is also an overarching challenge that, as information technology has developed, so too has the exponential growth and storage of documents in an electronic format. This has required, in part, the development of document management policies and practices to respond to the voluminous nature of information capture. This creates a tension in practice between appropriate and legitimate destruction of documents in accordance with a document management system or policy, and the deliberate destruction of documents aimed at removing documents from the jurisdiction of the court.

1.35 The task in this Inquiry is to develop proposals and ultimately recommendations for reform that balances these tensions fairly and practically. The key tensions noted in this section are developed further throughout the chapters in this Consultation Paper and will inform the consultation process to follow.

[47] C Cameron and J Liberman, ‘Destruction of Documents Before Proceedings Commence—What is a Court to Do?’ (2003) 27 Melbourne University Law Review 273, 274.

[48] Although its origins can be traced to civil law: Ibid, 276.

[49] E Bray, The Principles and Practice of Discovery (1885), 1.

[50] Ibid, 1–2.

[51] W Holdsworth, A History of English Law (3rd ed, 1945), vol v, 281. William Blackstone identified such limitations as among the ‘defects’ of the common law, and specifically listed ‘the want of a compulsive power for the production of books and papers belonging to the parties’, and the significance of such evidence in ‘mercantile transactions’: W Blackstone, Commentaries on the Laws of England (1768), vol iii, 382–383.

[52] W Holdsworth, A History of English Law (3rd ed, 1945), vol v, 332.

[53] E Bray, The Principles and Practice of Discovery (1885), 5.

[54] C Cameron and J Liberman, ‘Destruction of Documents Before Proceedings Commence—What is a Court to Do?’ (2003) 27 Melbourne University Law Review 273, 277–278.

[55]Davies v Eli Lilly & Co [1987] All ER 801, 804.