Discovery e-news | Issue 3

The highlight of the last month was the first Discovery Advisory Committee meeting, where we subjected our preliminary ideas—gleaned from our research and consultations to date—to the scrutiny of an assembled body of leading experts. The ‘thought bubbles’ were robustly debated among the group, including Federal Court judges, defendants’ lawyers, plaintiffs’ lawyers, in-house counsel, academics and regulators.  Advisory Committees play a really important role in ALRC processes, helping to identify key issues and determine priorities.  The contribution of the Discovery Advisory Committee at this early stage was incredibly helpful and constructive.  We are extremely grateful to those who continue to contribute so willingly and generously to our inquiries in this way.

Our preliminary consultations and research have been continuing, around the work for the Advisory Committee meeting. What has been most instructive has been to speak to litigation funders, who bring another perspective to the issues under review in the inquiry. We have also spoken with key people at the Family Court—another federal court that is included within our Terms of Reference.  The Family Court works on the basis of ‘disclosure’ rather than ‘discovery’, so this provides another focus for comparison and contrast.

The next month will see the ALRC concentrating on writing up the Consultation Paper for release in October, after which we will be embarking on a round of further consultations focused on the issues and proposals raised in it.

In other ALRC news, last week we launched a brand new website – https://www.alrc.gov.au/ – a much anticipated development that we hope will assist the ALRC to be more accessible and responsive to its stakeholders and to the community in general. We’d love to hear your feedback.

In conducting its inquiry into discovery laws and practice, the ALRC was asked in particular to consider alternatives to discovery.  This may include the enactment of pre-action requirements for the exchange of information and documents between prospective litigants prior to the commencement of court proceedings.  Pre-action protocols have been in place for some time in the United Kingdom.  In 1996, Lord Woolf’s Access to Justice report recommended the development of pre-action protocols to build on, and increase the benefits of, early but well-informed settlement to genuinely satisfy both parties to dispute.  The Civil Procedure Rules (UK) now include 11 pre-action protocols that set out codes of practice in specific areas of litigation, such as personal injury and medical negligence.  In many instances, these pre-action protocols provide for …  Read the complete post on the Discovery blog and contribute to discussion >>

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