30.07.2012
In July 2011, the Federal Court of Australia made new Rules of the Court. The new Rules, particularly Rule 20.15, are consistent with the ALRC’s recommendations concerning the making of discovery plans.
Federal Court practice note CM 6 was released in August 2011 and applies to any proceeding in which the Court has ordered that discovery be given of documents in an electronic format or in accordance with a discovery plan. The practice note CM 6 states that it is to be applied ‘in a manner that best promotes the overarching purpose of the civil practice and procedure provisions of the Court which are to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible’ and that the parties and their lawyers ‘must conduct the proceeding in a way consistent with the overarching purpose, in particular, by identifying documents relevant to the dispute as early as possible and dealing with those documents in the most efficient way practicable’—consistent with ALRC recommendations.
In November 2012, the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) was enacted. The Act implements ALRC recommendations for amendments to the Federal Court of Australia Act 1976 to clarify or extend the Court’s power to make costs orders in relation to discovery; and to provide expressly that the Court or a judge may order pre-trial oral examination about discovery.
Most importantly, the Federal Court of Australia Act was amended to provide expressly that the Court or a judge may order the party requesting discovery to pay in advance for some or all of the estimated costs of discovery; order the party requesting discovery to give security for the payment of the cost of discovery; or make an order specifying the maximum cost that may be recovered for giving discovery or taking inspection (Federal Court of Australia Act s 49(3)(h), implementing Rec 9–2). The Federal Court of Australia Act was also amended, in relation to pre-trial oral examination about discovery, by adding an example at the end of the definition of ‘proceeding’ in s 4, and a note (at the end of s 46) highlighting that proceedings include incidental proceedings, such as discovery.