Pre-trial oral examinations in the Australian context

Oral deposition-like processes in Australia

5.98 A number of legislative provisions exist in Australia that allow a court or a government agency to make orders or compel a person to be subject to oral examination. Some of these are discussed below.

Federal Courts

5.99 Under the Federal Court Rules (Cth), the court is empowered to make orders ‘for the attendance of any person for the purposes of being examined’, or for ‘the production by him of any document or thing specified or prescribed in the order’.^[152] The court is also empowered ‘for the purposes of proceedings in the Court’ to make orders for the examination of any person on oath or affirmation before a judge or other appointed examiner.^[153]

5.100 Similarly, the Family Law Rules (Cth) gives power to a court with jurisdiction under the Family Law Act 1975 (Cth) to request, at any stage in a case, the examination on oath of any person before a court or court officer, or to authorise a person to conduct an examination.^[154]

Corporations Act 2001 (Cth)

5.101 Under sections 596A and 596B of the Corporations Act 2001 (Cth), ‘eligible applicants’^[155] are able to request that a court issue a summons for the examination of a person concerning ‘examinable affairs’.^[156]

5.102 During the examination, the court may give directions concerning, among other things: matters to be inquired into; the procedure of the examination; the presence of any other persons at an examination; and access to the records of the examination.^[157] The court also has power to consider whether questions put to the summoned person is ‘appropriate’.^[158] Generally, the examination should be held in public unless the court considers that there are special circumstances.^[159]

5.103 The purpose of such an examination was expressed by the authors of Australian Corporations Law Principles and Practice, and quoted by the VLRC, as ‘not in the nature of legal proceedings before a court; they are more in the nature of investigative procedures where the court has a presence for the purpose, basically, of seeing fair play between the persons interrogating and the persons being interrogated’.^[160]

Government agencies

5.104 A number of government agencies—largely regulatory and investigatory bodies—have powers to compel a person to appear for examination under oath in a setting other than in court at trial.^[161] For example:

• the Australian Competition and Consumer Commission may issue a notice requiring persons to appear before it to give evidence on oath or affirmation, in relation to purported breaches of the Trade Practices Act 1974 (Cth);^[162]

• the Australian Securities and Investment Commission (ASIC), in investigating suspected breaches of the Corporations Act, can compel a person to appear before an ASIC member for examination on oath if ASIC ‘on reasonable grounds, suspects or believes that a person can give information relevant to a matter’;^[163]

• the Commissioner of Taxation can give notice compelling a person to give oral evidence on oath or affirmation, in connection with the administration of the Income Tax Assessment Act 1936 (Cth);^[164]

• the Commonwealth Ombudsman may, in the course of conducting an investigation, require a person to appear before him or her or an appointee for the purposes of answering relevant questions;^[165]

• the Australian Commission for Law Enforcement Integrity can summon a person to give evidence (including to produce documents or things) as part of a ‘hearing’ directed either to investigating a ‘corrupt issue’ or conducting a public inquiry;^[166] and

• the Australian Communications and Media Authority may require a person to appear before its delegate for examination on oath or affirmation in connection with an investigation it is conducting.^[167]

A case for oral depositions in Australia?

5.105 The possibility of adopting US style deposition into the Australian civil justice system has been raised in reports by the VLRC, the Law Council of Australia, the litigation funder IMF,^[168] as well as some in academic circles.^[169]

5.106 The ALRC in its 2000 report, Managing Justice: A Review of the Federal Civil Justice System (ALRC Report 89), noted the following in respect of depositions:

Some practitioners argued for the introduction of depositions in representative proceedings … The Commission heard that depositions potentially could add significant cost and delay. The Commission notes that the judge may order depositions to be taken if it is considered necessary in a particular case, pursuant to the general discretion in s 33ZF of the Federal Court Act to ‘make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding’ or the provision dealing with examination of witness in Order 24 of the Federal Court Rules. The Commission is not disposed to make any recommendation in relation to the introduction of depositions at this stage. However, it is a subject which also could be considered in a review of Part IVA of the Federal Court Act.^[170]

5.107 Oral depositions were also considered in the Federal Court Liaison Committee (the Committee) of the Law Council of Australia’s Final Report in Relation to Possible Innovations in Case Management. The Committee proposed that ‘the Court be at liberty to permit oral depositions, limited by number, witness, length and subject matter’.^[171] The Committee commented that:

This proposal proved very controversial. A widespread reaction to it was adverse on the grounds that it would be likely to be productive of unnecessary expense and even that it would constitute a reversal of the current policy of discouraging interrogation. Most practitioners opposed the proposal with support coming primarily from those with practical experience of both US depositions and trial practice.^[172]

5.108 However, it was also noted that ‘based on the American experience, it would seem clear that, potentially, in addition to any function which oral depositions may perform in promoting settlement, they may have a valuable role in relation to discovery and the limitation on evidence and dealing with experts’.^[173] In particular, ‘oral depositions offer an alternative to interminable document discovery … in relation to certain documents, issues can be quickly dealt with by some questions of a witness which would otherwise be difficult to track through a paper trail’.^[174] The Committee concluded that:

Depositions would not be appropriate in many cases. Where cases are complex and the evidence of key witnesses may be significant, they may be, however, a very effective case management tool.^[175]

5.109 The Committee recommended that ‘the Court introduce, on a trial basis, an entitlement for the parties to examine on oath individuals employed by or on behalf of a party or witnesses proposed to be relied upon by that party’.^[176] This proposal has not been implemented.

5.110 In its 2008 Civil Justice Review Report, the VLRC undertook detailed analyses of oral depositions in Canada, the US and UK jurisdictions.^[177] The VLRC concluded that, subject to appropriate safeguards to curb potential abuse of the process and the escalation of costs, provisions ought to be made for pre-trial oral examinations.^[178] In particular, it recommended that pre-trial examinations only be permitted with leave of the court. This would give the court an opportunity to determine whether examination is necessary or desirable in a given case and, if so, allow the court to set the conditions for the examination to ensure that the process is not abused, control cost and protect vulnerable witnesses.^[179]

5.111 In many other respects, the model recommended bears similarities with the procedure set out in the US. The VLRC summarised the key features of its proposal in the following way:

• examinations would only be possible by consent, with leave of the court;

• parties would be expected to attempt to agree on the details of the examinations;

• the court would have the power to make directions limiting the number and duration of examinations;

• it should not be necessary to require examinations to be conducted before an independent third party in most instances, but in appropriate cases, examinations may be held before an examiner who is not a judicial officer (including an independent legal practitioner);

• there would be a process for identifying appropriate corporate deponents;

• examinees would be entitled to refuse to answer questions on the ground of legal professional privilege, and protected against disclosure or future use of self-incriminating information revealed in response to a question;

• objections to particular questions asked during the course of an examination would be noted on the record for determination by the court in the event that the answer is later sought to be introduced into evidence;

• the transcript of the examination would be able to be introduced into evidence at trial in a number of circumstances; and

• subject to certain limits, the costs of examinations should be recoverable as costs of the proceedings.^[180]

5.112 The VLRC’s recommendations for pre-trial oral examinations were not implemented in the Civil Procedure Bill 2010 (Vic).^[181] Rather, s 57 of the incoming Civil Procedure Act provides for oral examination in the context of discovery only where documents have already been produced by way of subpoena, and pursuant to leave being granted by the court, a party may cross-examine or conduct an oral examination of a deponent of an affidavit of documents prepared by or on behalf of any party to a proceeding.^[182] The ground for application for leave must be that there is a reasonable belief that the party to be examined may be misinterpreting their discovery obligations, or failing to disclose discoverable documents.^[183]

5.113 Legg has argued that the use of depositions in Australia would aid in promoting settlement, or if no settlement occurs, a narrowing of the issues in dispute:

The deposition is an opportunity for a party to test its view of the facts with opposing witnesses. Consequently, the opposing witness will be required to say which facts they agree with and why. In a complex case, those points of disagreement may be numerous but there will be many points of agreement which do not need to be dealt with before the court. The trial can therefore focus on the key issues and be conducted more efficiently.^[184]

5.114 The introduction of depositions, Legg notes, would result in ‘a major transformation of civil procedure in Australia’,^[185] as affidavit evidence would be substantially reduced or replaced by depositions. This has both practical and cultural implications for the profession:

Legal practitioners would need to move from drafting affidavits with only the witness present to the adversarial deposition… The deposition requires practitioners to have a skill-set that is often split between solicitors (witness preparation) and barristers (witness examination) which will likely need to be reconciled … This may impact law school and professional qualification curricula.^[186]

ALRC’s views

5.115 The ALRC has heard uniformly in consultations that narrowing the issues in dispute prior to discovery, or prior to the commencement of litigation, is essential to limiting the cost of litigation. The ALRC agrees with the VLRC that the primary object of oral examinations is not preparation for trial, but the narrowing of issues in dispute in order to facilitate settlement, or if the matter proceeds to hearing, to restrict or eliminate the need to call or test particular evidence.

5.116 The ALRC recognises that the introduction of depositions would have a significant impact on legal culture in Australia, in particular, the need for lawyers to be educated and trained in the use of oral depositions. However, the ALRC notes that the process of oral examination is not entirely new; such powers for oral examination are available to the Federal Court and courts exercising Family Law jurisdiction, as well as federal regulatory bodies.

5.117 The experience in the US suggests that there are benefits to depositions in terms of promoting settlement and narrowing the issues in dispute. The challenge lies in leveraging these benefits, while ensuring the procedure is not subject to abuse by parties, and controlling cost implications. The ALRC agrees with the VLRC that a necessary safeguard is that depositions only be taken with leave of the court, and allowing the courts to set the limits and parameters in which depositions take place.

5.118 The ALRC is interested in stakeholder views about whether cost issues could be controlled by limiting oral examinations to particular types of disputes, and which, if any, mandatory considerations a court should take into account in granting leave for oral examinations.