ALRC releases Consultation Paper on Discovery

The Australian Law Reform Commission (ALRC) today released a Consultation Paper for the Inquiry into Discovery of Documents in Federal Courts—Discovery in Federal Courts (ALRC CP 2, 2010).

The 2009 Access to Justice Taskforce report—established by the Commonwealth Attorney-General’s Department, which recommended that the ALRC conduct this Inquiry—noted that the high and disproportionate cost of discovery can impose a barrier to justice in court based dispute resolution. While the truth-seeking purposes of discovery may promote fairness in litigation, the commercial realities of contemporary discovery practice and procedure may threaten the very same fairness and justice sought to be achieved.

ALRC President Professor Rosalind Croucher said “A particular feature of contemporary litigation is the massive exponential growth and storage of documents in the electronic age. Discovery can be an important process in litigation to avoid ‘trial by ambush’, but the vast amount of electronically-stored information which litigants might be required to disclose can lead to ‘trial by avalanche’. The impact of information and communication technologies can also exacerbate the inherent tension between the party requesting discovery—seeking to ascertain facts material to the case; and the party giving discovery—bearing the burden of retrieving, reviewing and disclosing documents in response to discovery requests. The task in this Inquiry is to develop proposals and ultimately, recommendations for reform that balances these tensions fairly and practically.”

The Consultation Paper raises a number of issues and proposals on which the ALRC seeks feedback. For example, to ensure that cost and time required for discovery is proportionate to the matters in dispute, the ALRC proposes a number of reforms aimed at clarifying the core issues in dispute between the parties, and focusing the scope and conduct of discovery on those issues that really matter. Professor Croucher commented that “The role of judges as case managers is crucial in this regard, and many of the ALRC’s proposed reforms seek to remove obstacles and make changes to enable judicial control over the discovery process.”

The ALRC’s Terms of Reference extend to a broader examination of procedures alternative to traditional discovery, which may facilitate information exchange and fact-finding. In particular, this Inquiry considers the introduction of pre-action protocols and pre-trial oral examinations; to encourage disclosure of information and documents, narrowing the facts in issue and settlement of disputes.

President Croucher noted, “While these alternative procedures may offer a measure of efficiency and streamlining of the litigation process, the implications for front-loading of costs must also be taken into account. Therefore any reforms proposed in these areas of civil practice and procedure must be flexible to accommodate the size, complexity and nature of the dispute.”

The ALRC is no longer able to provide hard copies of our consultation papers due to a reduction in our funding, however the Consultation Paper is available to view or download from the ALRC’s website.

Submissions addressing the questions and proposals in the Consultation Paper can be posted, faxed or emailed to the ALRC.  Online submissions are encouraged. Information about how to make an online submission is available at . The ALRC is also conducting an online discussion blog around the Consultation Paper and encourages people to participate at

Closing date for submissions is 19 January 2011.

The Commission will submit its Final Report to the Attorney-General on 31 March 2011.