Published on 14 April 2011.

Presentation by Patrick Collins, Senior Legal Officer, Australian Law Reform Commission at Rydges Melbourne, 14 April 2011

 

Acknowledgments

First, may I acknowledge the traditional custodians of the land on which we meet—the Wurundjeri people of the Kulin nation—and pay my respects to their elders, both past and present, as well as acknowledging any Indigenous people in attendance today.

As part of its Reconciliation Action Plan, the Australian Law Reform Commission is committed to making an ‘Acknowledgement of Country’ at events like this—and I am honoured to do so today.

Secondly, I would like to thank eDiscovery Asia Pacific for inviting the Australian Law Reform Commission to address this forum.

I was involved in the ALRC’s Discovery Inquiry from the outset, on secondment from the Attorney-General’s Department, and I am delighted to have the opportunity today to speak about the project.

Introduction

On 10 May 2010, the Attorney-General asked the ALRC to identify law reform options to improve the practical operation and effectiveness of discovery of documents in litigation.

The ALRC delivered its report on the Discovery Inquiry to the Attorney-General on 31 March 2011. The report is yet to be tabled in Parliament so I won’t talk about the ALRC’s final recommendations for reform in detail.

I will focus on the process of developing a law reform response and discuss the major themes that emerged in the Discovery Inquiry—with reference to the public Consultation Paper and submissions.

Concerns about discovery, in terms of the volume of documents that must be managed in litigation, are not new.

In his 1852 novel, Bleak House, Charles Dickens described the record-keeping systems in the Court of Chancery as ‘mountains of costly nonsense, piled before them’.

The mountains of papers which Dickens described might look like molehills compared to the galaxies of electronic data managed in contemporary litigation.

It is important that discovery issues be reviewed through the lens of modern technologies, but equally important is the independence of the ALRC in conducting that review.

As French novelist, Marcel Proust, said: ‘the real voyage of discovery consists not in seeking new landscapes but in having new eyes’.

Background to the Inquiry

Discovery is a landscape well-trodden by many commentators and law reform bodies. In the ALRC’s landmark inquiry into the federal civil justice system in the 1990s culminating in the report, Managing Justice, discovery was singled out as ‘the procedure most open to abuse, the most costly and the most in need of court supervision and control’.[1]

It is not just the high cost associated with discovery that causes concern. It is the low value for money that prompts criticism of the discovery process.

The 2009 report by the Attorney-General’s Department, A Strategic Framework for Access to Justice in the Federal Civil Justice System, noted that, ‘The cost of discovery continues to be very high, and often disproportionate to the role played by discovered documents in resolving disputes’.[2]

Other reports

A key objective of the Strategic Framework is to ensure that the costs and methods of dispute resolution are proportionate to the issues in dispute.[3]

This was also the driving principle in Lord Jackson’s Review of Civil Litigation Costs in England and Wales in 2009. His brief was to find ways of making costs more proportionate in relation to the sum or other remedy at stake in civil actions, whilst promoting access to justice.[4]

Lord Jackson paid particular attention to the costs of disclosing documents, with a specific focus on e-disclosure.[5]

The costs associated with discovery also featured prominently in the Victorian Law Reform Commission’s 2008 Civil Justice Review.[6]

These and other inquiries provided fertile ground for the ALRC in its Inquiry into discovery in the federal courts.[7]

Evidence-based reform

Each ALRC Inquiry must be built upon a solid evidence base. As the ALRC commented in the Managing Justice report: ‘failed efforts at reform often proceed on the basis of anecdote’.[8]

Building an evidence base is facilitated by the ALRC’s statutory power to ‘inform itself in any way it thinks fit’ for the purposes of an inquiry.[9]

The exercise of this power depends on three principal variables: first, the nature and scope of the inquiry; secondly, the timeframe in which it is to be discharged; and thirdly, the budget and resources available in the inquiry.

Data collection

If resources permit, the evidence base might include empirical studies. For example, the Managing Justice Inquiry extended over four years and the ALRC was able to conduct an extensive survey of litigation costs.[10]

In the Discovery Inquiry, the proportionality of discovery costs would have been amenable to such empirical investigation.

However, the Discovery Inquiry was only about 11 months long and a full team of ALRC officers was not available at the start of the Inquiry—not until the ALRC had finished a major review into family violence across the Commonwealth, states and territories.

I was seconded from the Department to start the Inquiry in May 2010 but I was on my own until December, working with the Commissioner in charge, Prof. Rosalind Croucher.

The timeframe and resources allowed for a limited form of qualitative research—through a questionnaire canvassing lawyers’ impressions of discovery.

The ALRC received only a few responses to the questionnaire. But they provided practical examples which contextualised the proportionality of discovery costs, in terms of the value of the documents in the context of the litigation.

At the same time, the ALRC’s Consultation Paper proposed that data collection facilities should be established in the Federal Court to measure the proportionality of discovery costs.[11] Michael Legg, of the University of New South Wales, responded that this was ‘the most significant suggestion’ in the Consultation Paper, ‘as it would allow reform in the Federal Courts to be driven by fact rather than fashion’.[12]

However, discovery is not a matter that can be measured entirely in precise terms. The public interests and values that underpin discovery—such as truth-seeking and fairness to the parties—are also of significance in developing law reform.

Community consultation

A critical means of building evidence around reform that is so founded on values and principles, such as access to justice, is community consultation. In fact, widespread consultation is a hallmark of best practice in any law reform.

The nature and extent of this engagement is normally determined by the subject matter of the reference—but the timeframe and budget in which the inquiry must be completed are also decisive factors.

Measures can be taken to accommodate time and resource factors, like holding consultations over the telephone or online, but a solid basis of face-to-face meetings is necessary to engage the community in law reform.

National consultations

Consultations in the Discovery Inquiry were held with litigants—both in the business and government sectors—and with members of the legal profession—on both the applicant and respondent sides—as well as members of the judiciary, litigation funders and the litigation support industry, community legal centres and public interest advocates.

47 consultations were held in the course of this Inquiry around Australia—principally in Sydney and Melbourne—as the hubs of commercial litigation in the Federal Court—as well as Canberra—home to many government stakeholders.

We were heartened to hear the Law Council of Australia say, in its submission to the Inquiry, that the ALRC was ‘highly flexible and considerate in conducting consultations during this Inquiry’.[13]

It is always very reassuring to receive positive feedback on the conduct of an ALRC inquiry, particularly from the Law Council.

International consultations

The ALRC also consulted with experts in other jurisdictions during this Inquiry. This included the Senior Master of the Queen’s Bench Division of the High Court of England and Wales, Senior Master Steven Whitaker, who is a distinguished commentator on e-disclosure issues in the U.K.

In addition, the ALRC was in contact with the High Court of New Zealand’s Rules Committee—which published consultation papers and draft Court Rules in 2010 to reform the laws of discovery.[14]

The experience of other jurisdictions with similar issues is always a valuable consideration in any ALRC inquiry. And the ALRC was expressly directed to have regard to such experience in the Terms of Reference for its Discovery Inquiry.

Online consultations

Another aspect of the ALRC’s consultation strategy is the use of online tools, to reach a wider audience.

This included a regular e-newsletter on the Discovery Inquiry, to keep interested people informed about progress. In total, there were 226 people who subscribed to the Discovery e-newsletter.

The newsletter also provided a link to the ALRC’s Discovery Blog, which offered insight into particular issues the ALRC was considering in the review and facilitated public discussion of those issues.

Valuable contributions to the Discovery Blog were made by a few stakeholders. In addition, there were 1522 other people who read the blog during the course of this Inquiry.

This allowed the ALRC to make its internal dialogue more transparent to stakeholders—and the reform process more accountable, as a result.

Consultation Paper

An essential means of gathering evidence in this Inquiry was the release of the Consultation Paper in November 2010, seeking submissions in response to 53 questions and 15 proposals for reform.

Usual ALRC process would have questions explored through an Issues Paper and responses taken into account before the release of a Discussion Paper setting out proposed reforms. The combination of these steps in a single Consultation Paper was necessary to accommodate the timeframe in this Inquiry.

The release of the Consultation Paper was marked by public seminars in Sydney and Melbourne.  In Sydney, the Federal Court hosted the ALRC in its ceremonial court-room for a panel discussion introduced by Chief Justice Patrick Keane.

The Melbourne event was roundtable forum hosted by the University of Melbourne and focussed on legal ethical issues arising in discovery practice.

The Consultation Paper was received well by stakeholders. One submission commented that it provided ‘a thorough overview of the existing procedures as well as raising many sensible proposals for dealing with some of the practical problems regarding discovery’.[15]

Submissions

The ALRC received 30 submissions to the Discovery Inquiry, including submissions from the courts and government departments, law firms and law societies, barristers, academics, litigation support service providers and public interest organisations.

Submissions are an invaluable resource for the ALRC. They demonstrate the diversity of views amongst stakeholders, and indicate whether particular proposals for reform are supported by the community.

They also represent a considerable amount of work for stakeholders and the ALRC greatly appreciate the contributions of all participants.

Appointed experts

In addition to the contribution of expertise by way of consultations and submissions, specific expertise is obtained through an Advisory Committee and the appointment of part-time Commissioners.

In this Inquiry, the Advisory Committee included judges, lawyers, corporate and government officers, and academics—all of considerable seniority and repute.

Two part-time Commissioners, both Federal Court judges, were appointed to this Inquiry: the Hon Justice Arthur Emmett and the Hon Justice Bruce Lander. They joined two standing part-time Commissioners, also judges of the Federal Court: the Hon Justice Susan Kenny and the Hon Justice Berna Collier.

Policy landscape

Through consultations and submissions, as well as the ALRC’s own research and deliberations, a number of key themes emerged in the Discovery Inquiry.

These themes paint a picture of the policy landscape and the areas of tension that presented challenges in this Inquiry.

Discovery rationale

As a starting point, the underlying rationale of the discovery doctrine was broadly considered to be sound and relevant in contemporary litigation.

The central aims of discovery in fact-finding and decision-making are cornerstones of litigation. Discovery allows the parties to test the merits of their case and enables the court to make informed determinations of the parties’ rights.

Discovery is also fundamental to achieving fairness between the parties to litigation. It has been described as ‘playing with all the cards face up on the table’.[16]

These are the very purposes for which discovery was originally developed in the early practice of the Court of Chancery. Discovery provided equitable relief from the rigid rules of the common law courts, which were limited in their methods of gathering evidence.[17]

The same justification for discovery seems equally applicable in modern litigation. A number of submissions commented about the important role that discovery plays today. For example, the Australian Government Solicitor advised that discovery ‘helps to ensure that parties in the adversarial process can proceed on an equal footing and without ambush, and that relevant materials are before the court’.[18]

Judicial case management

Another premise widely accepted by stakeholders is the court’s role in managing litigation, including any discovery process.

In the Managing Justice inquiry, the ALRC noted a shift in the traditional adversarial system; towards judicial—rather than lawyer or party—control of litigation.[19]

This trend was given statutory force with the commencement of s 37M of the Federal Court of Australia Act 1976 on 1 January 2010.

This section establishes the overarching purpose of civil practice and procedure—namely, the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.

It also provides that civil practice and procedure provisions, which include the Federal Court Rules, must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out, in the way that best promotes the overarching purpose.

The Explanatory Memorandum to this amendment explains that s 37M applies to both the Court and the parties to proceedings, ‘in recognition of the fact that it would not be possible for either the Court or the parties to achieve this objective without the assistance of the other’.[20]

Section 37N of the Act extends its application to the parties’ lawyers, who must assist the parties to comply with the duty to uphold the overarching purpose of civil practice and procedure.

Therefore, responsibility lies both on the Court and the parties, through their legal representatives, to manage a proportionate discovery process that facilitates the resolution of disputes.

This can be seen in Federal Court Practice Note CM 5 which states that parties should expect the Court to ask whether discovery is necessary at all and, if so, for what purpose?

Discovery in mega-litigation

To the extent that there is a problem with discovery, it is typically found in the practicalities of large, complex and high-stakes litigation—what Justice Sackville has called ‘mega-litigation’[21]—in the Federal Court of Australia.

These types of cases are marked by a large number of parties and a broad and complex range of factual and legal issues in dispute.

Often the parties are determined to pursue all avenues of inquiry, and not to give away ‘points’ too early—as Roger Forbes of Mallesons Stephen Jacques, who represented Telstra in Seven Network v News Limited (C7), said of the parties: ‘we’re entitled to run all the points we want to and we don’t have to, at the outset, decide which are the best ones and which are the bad ones’.[22]

The expanse of issues disputed in mega-litigation has the consequence of setting broad boundaries for the discovery of relevant documents.

Impact of technology

Another distinguishing feature of mega-litigation is the sheer volume of data that must be managed in trade and commerce. For example, in Betfair v Racing NSW, the applicant managed the electronic records of over 2.5 million customers, which occupied some 21 terabytes of memory growing at 70 gigabytes per day.[23]

Advances in computer technologies have enabled exponential growth in the number of records created and stored in an electronic format. It has been estimated that 98% of corporate records exist in electronic form only.[24]

This has a multiplier effect on the costs of discovery. The vast amount of electronic material that must be reviewed during discovery in mega-litigation is a contributing factor to the high costs, but the expertise required to retrieve and produce documents in an electronic format carries its own cost.

One horror story recounted to the ALRC in this Inquiry was about discovery of documents stored on outmoded backup tapes. Hardware had to be reconstructed and software redeveloped, at great expense, in order to extract the documents—which turned out to be completely irrelevant.

However, instances of nightmare discoveries represent only a portion of the Court’s overall caseload.  During consultations, some Federal Court judges commented that discovery is straightforward and routine in about 80% of cases.

Utility of discovery

Even in the small number of cases where there are problems associated with discovery, many practitioners suggested during consultations that criticisms of discovery are overstated.

For example, Justice Sackville remarked in the C7 case that estimated legal costs of $200 million—in a claim for damages of between $195 and $212 million—was bordering on the ‘scandalous’. [25]

However, during the Discovery Inquiry, a number of lawyers and litigation funders estimated that discovery costs are typically around 20% of the total litigation expense.

Similarly, Justice Finkelstein observed that in the C7 case, the overall yield of discovery—in terms of the admitted evidence produced—was well below 5% of the documents discovered.[26]

Yet, many lawyers commented that this figure misrepresents the utility of discovery—a single discovered document may turn out to be critical. Apart from being evidence at trial, discovered documents facilitate early settlement between the parties and inform the issues which become crucial in proceedings.

Nevertheless, reform of discovery practice and procedure—in cases where it can be problematic—was generally welcome by stakeholders in this Inquiry.   

Access to justice

Discovery may be a vital component of justice in some litigation, but the cost and delay incurred in some cases threaten the very foundations of the practice itself.

Rather than making litigation fair and efficient, discovery can be so burdensome in some cases as to dissuade litigants from pursuing their rights in court and, as such, discovery imposes a barrier to justice.

This concern was summarised in a submission from the Commercial Litigation Association to Lord Jackson’s review of costs in the UK: ‘if the situation is distilled in to the simple question “justice or costs?” costs, commercially, must prevail’.[27]

The balance between justice and costs can be seen in the broad statement of the overarching purpose of civil practice and procedure in s 37M of the Federal Court Act. The just resolution of disputes according to law must be achieved as quickly, inexpensively and efficiently as possible.

Policy tensions

Tension between the parties

In practice, however, there is an uneasy tension between the time and money that discovery can consume and the right of parties for a reasonable opportunity to present their case.

This tension divides 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 producing documents.

Tension between party and lawyer

There is also a tension between a client and their lawyer, in terms of the duties lawyers owe to clients and to the court in the context of discovery.

A lawyer must represent and protect their client’s best interests—which, in some cases, might be served by extensive inquiry and discovery of documents.

Such practice might be proficient advocacy on the lawyer’s part in some cases, but in other cases it might be defensive legal practice against the threat of liability for professional negligence.

At the same time, a lawyer is an officer of the court and must serve the interests of the administration of justice.

The cost and delay associated with some discoveries—while affordable for the client—may be contrary to the quick, inexpensive and efficient resolution of disputes.

Tension between the parties and the court

There is a further tension between the court, on the one hand, and the parties and their lawyers, on the other hand.

A number of lawyers have called for judges to be more interventionist in their management of discovery issues.

At the same time, judges have argued that parties need to provide more information about the case that would be presented at trial—for the court to manage discovery in relation to those issues.

Some judges told the ALRC that, at times, the parties and their lawyers are in the best position to manage discovery—as they are most familiar with the case and their documents.

However, the ALRC also heard many judges agree that active judicial case management is essential in relation to discovery—and even admit that some judges are more involved in case management than others.

Direction of law reform

These tensions between the parties, their lawyers and the court were considered in the Discovery Consultation Paper, which proposed a number of reforms aimed at clarifying their respective roles in relation to discovery.

The proposed reforms were focussed on the Federal Court of Australia and built upon structures already in place. 

Limiting discovery to crucial issues

For example, Federal Court Practice Note CM 5 makes it clear that the Court will look to fashion any order for discovery to suit the issues in a particular case.

Typically, this means the court will order discovery of specific categories of documents relevant to certain issues in dispute.

In the Managing Justice report, the ALRC noted that discovery by categories can work well ‘if the issues in dispute are sufficiently well defined that the documents are amenable to classification’.[28]

In the Discovery Inquiry, the ALRC proposed a number of ways to highlight the crucial issues in dispute so that discovery may focus on what matters most.[29]

This includes: preparing a list of issues in dispute, in order of importance in the proceeding; outlining the issues and facts that appear to be in dispute, at an initial directions hearing; and outlining the evidence on which the parties intend to rely at trial.

These mechanisms were identified during consultations by judges and lawyers as things they had used on occasion to effectively manage the discovery process.

However, in some cases, identifying the crucial issues early in proceedings would be difficult—when the emphasis on certain issues changes throughout the course of litigation, especially after documents are discovered.

Parties’ cooperation on discovery

During consultations, the ALRC heard that categorising discoverable documents by their relevance to issues in dispute would not—by itself—significantly reduce the burden of discovery. In some cases, large volumes of documents would still need to be reviewed in order to find the relevant ones.

A number of stakeholders argued that discovery orders also need to focus on specific locations or custodians of relevant documents.

Federal Court Practice Note CM6 suggests that parties should discuss and agree upon a practical discovery plan, including such things as strategies for conducting a reasonable search for discoverable documents.

However, the ALRC heard that, in practice, parties rarely make such formal arrangements. One stakeholder said discovery plans have no ‘status’ in the conduct of litigation.

The ALRC also heard that judges don’t often consider the practicalities of discovering documents, before making orders for discovery.

The Consultation Paper proposed the introduction of procedural requirements to formalise the use of discovery plans in Federal Court proceedings.[30]

The parties would be obliged to: meet and confer on the discovery of electronic documents; and jointly file a draft discovery plan setting out their agreement or areas of disagreement—for the court’s approval or determination.

The proposal received widespread support in submissions but there were also concerns that discovery plans would not be needed in simple or straightforward cases—where the cost of developing a plan might outweigh its benefits.

Judicial scrutiny

Judges are expected to be active participants in the parties’ endeavours to negotiate the scope and process of discovery.

Consultations revealed that some judges are known to ‘take discovery by the scruff of the neck’, as one stakeholder put it. But there are strong concerns about inconsistencies in case management across the bench.

For example, the ALRC heard that some judges do not apply the requirement in Federal Court Rules for leave of the Court to serve a notice for discovery, in a formal or consistent manner. Relevant factors as to whether leave should be granted might not be given serious consideration in some cases.

The Consultation Paper asked whether a threshold test should be introduced that parties would have to satisfy when applying for discovery orders. This would provide a basis for judges to scrutinise consistently the need for discovery in each case.

In line with this proposal, draft amendments to the Federal Court Rules provide that a party may apply for discovery orders only if it is necessary for the just determination of issues in the proceeding.

This rule would be supported by the operation of s 37M of the Federal Court Act which requires the Court to exercise its powers—such as granting leave for discovery—in the way that best promotes the overarching purpose of civil practice and procedure: namely, the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.

Costs powers

There are a variety of mechanisms at the Court’s disposal that it may employ in giving effect to the overarching purpose, which can have specific application in the context of discovery.

The breadth of the Court’s case management powers was not an issue in the Discovery Inquiry. Rather, the concern was the manner and extent to which the Court actively exercises its powers to control discovery.

Yet there was strong resistance from judges consulted in this Inquiry against reforms that would fetter judicial discretion by imposing inflexible rules of general application.

The Consultation Paper examined a number of tools in the Court’s kit-bag, which might be addressed in reforms to encourage their use in appropriate cases at the Court’s discretion.

This includes the Court’s power to award costs, in particular, shifting the estimated costs of discovery to the requesting party in advance of documents being produced.

The ALRC heard that such orders have been made to effectively control discovery in some cases—but stakeholders also warned that in other cases, up-front payment for discovery would deny the parties justice.

Discovery masters

Another case management strategy discussed in the Consultation Paper was the use of discovery masters. This could be, for example, an industry expert who would consider technical e-discovery issues and report to the Court with recommendations for case management.

Concerns were raised in submissions about placing responsibility for case management outside of the Court, as well as the cost to the parties for this service.

On the other hand, some stakeholders saw the potential for expert attention to achieve greater efficiencies in discovery in some cases.

Judicial education

Law reform could draw attention to the judge’s tool-kit of case management powers. But encouraging judges to exercise those powers, in relation to discovery, in suitable cases, requires targeted education and training.

The need for judicial training in methods of discovering electronically-stored information was singled out in the Consultation Paper as being particularly pressing.[31]

This is due to the constant advancement of technology, and the mounting expectation of judges to be actively involved in managing electronic discovery issues.

The ALRC acknowledged that regular judicial training—properly resourced, of high quality and professionally appropriate—is an essential aspect of long-term cultural change in relation to discovery.

Document management systems

A number of submissions pointed out that the parties’ documents need to be sufficiently well organised and managed in order to facilitate a reasonable and proportionate discovery process.

The ALRC heard from a number of stakeholders that many litigants do not have effective record management systems in place.

One stakeholder proposed that the Federal Court should introduce requirements on the parties to adopt record management systems.

Such reform would have broader implications—outside of the courts system—for the day-to-day operation of business.

Conclusion

To conclude, a word of warning from the ALRC’s Managing Justice Inquiry, in a 1997 Issues Paper: ‘super-imposing increased judicial intervention and non-adversarial practices on the existing litigation system, has the potential to change it in fundamental ways and with results that are not easy to predict’.[32]

Fifteen years later, the trend towards judicial case management has given rise to a strong expectation of judges to get involved in the highly technical and practical aspects of discovering electronic documents.

However, in order to manage discovery effectively, judges require flexibility and discretion to mould court process in a way that best suits the needs of each case.

The move towards less-adversarial practice in litigation has produced an expectation of the parties to cooperate and to be transparent in relation to the scope and process of discovery.

However, in order to collaborate on discovery plans, the parties require the court to control their engagement and to resolve differences that will inevitably arise.

In the end, the scope and process of any discovery cannot promote the overarching purpose of civil practice and procedure without the court, the parties and their lawyers, taking responsibility for their respective roles.  

Law reform has the potential to clarify the parts played by everyone involved in discovery and, through greater certainty of expectation, greater consistency of outcome may be achieved.



[1]          Australian Law Reform Commission, Managing Justice: A Review of the Civil Justice System, Report 89 (2000), [6.67].

[2]          Australian Government Attorney-General’s Department, Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System (2009), Rec 8.2.

[3]          Ibid, 64.

[4]          Lovells (UK), Lord Justice Jackson’s Final Report on Civil Litigation Costs: An Overview (2010), 1.

[5]          R Jackson, Review of Civil Litigation Costs: Final Report (2009), Ch 37.

[6]          Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008), Ch 6.

[7]          See for example: British Columbia Justice Review Task Force, Civil Justice Reform Working Group, Effective and Affordable Civil Justice: Report of the Civil Justice Reform Working Group to the Justice Review Task Force (2006); Chief Justice’s Working Party on Civil Justice Reform (Hong Kong), Civil Justice Reform: Final Report (2004); Lord Woolf, Access to Justice: Final Report (1996).

[8]          Australian Law Reform Commission, Managing Justice: A Review of the Civil Justice System, Report 89 (2000), [1.36].

[9]              Australian Law Reform Commission Act 1996 (Cth) s 38.

[10]        T Matruglio, The Costs of Litigation in the Federal Court of Australia (1999), prepared for the Australian Law Reform Commission.

[11]        Australian Law Reform Commission, Discovery in Federal Courts, Consultation Paper 2 (2010), Proposal 3–7.

[12]        M Legg, Submission DR 07 17 January 2011.

[13]           Law Council of Australia, Submission DR 25, 31 January 2011.

[14]        New Zealand High Court Rules Committee, Proposals for Reform of the Law of Discovery Including Electronic Discovery and Inspection (2010); High Court Amendment Rules (No 1) 2011 (New Zealand).

[15]           Public Interest Advocacy Centre, Submission DR 15, 20 January 2011.

[16]           P Matthews and H Malek, Disclosure (2007), 4, [1.03].

[17]           W Holdsworth, A History of English Law (3rd ed, 1945), vol v, 281.

[18]           Australian Government Solicitor, Submission DR 27, 11 February 2011.

[19]        Australian Law Reform Commission, Managing Justice: A Review of the Civil Justice System, Report 89 (2000).

[20]        Explanatory Memorandum, Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 (Cth), [15].

[21]        R Sackville, ‘Mega-Lit: Tangible Consequences Flow from Complex Case Management’ (2010) 48 (5) Law Society Journal 47.

[22]        Lawyers Weekly, Excess or Necessity? Lawyers Reflect on C7 Litigation (2010)  <http://www.lawyersweekly.com.au/blogs/top_stories/archive/2007/09/28/excess-or-necessity-lawyers-reflect-on-c7-litigation.aspx> at 21 July 2010.

[23]           Betfair v Racing New South Wales [2010] FCA 603.

[24]        S Byrne, ‘E-Discovery: Where Information Management and Litigation Meet’ (Paper presented at Institute for Information Management Conference, Melbourne, 2010).

[25]        Seven Network Limited v News Limited [2007] FCA 1062, [10].

[26]        R Finkelstein, Discovery Reform: Options and Implementation (2008), prepared for the Federal Court of Australia.

[27]        Phase 2 Submission, Commercial Litigation Association, cited in R Jackson, Review of Civil Litigation Costs: Final Report (2009), ch 37, [3.5].

[28]        Australian Law Reform Commission, Managing Justice: A Review of the Civil Justice System, Report 89 (2000), [6.70].

[29]        Australian Law Reform Commission, Discovery in Federal Courts, Consultation Paper 2 (2010), Proposals 3–1, 3–2 and 3–3.

[30]        Australian Law Reform Commission, Discovery in Federal Courts, Consultation Paper 2 (2010), Proposal 3–4.

[31]        Australian Law Reform Commission, Discovery in Federal Courts, Consultation Paper 2 (2010), Proposal 3–6.

[32]           Australian Law Reform Commission, Review of the Adversarial System of Litigation: Rethinking the Federal Civil Litigation System, Issues Paper 20 (1997), [5.11].