Evidence-based reform

The need for an evidence base

1.41 Law reform recommendations cannot be based upon assertion or assumption and need to be anchored in an appropriate evidence base. As the ALRC commented in the Managing Justice report:

Deprecation of the legal system and failed efforts at reform often proceed on the basis of anecdote and assumption. This can include both untested and unfounded criticism of some current practices, procedures and institutions, as well as uncritical acceptance of alternatives.^[41]

1.42 Cases like Seven Network Limited v News Limited (C7),^[42] and other examples of so-called ‘mega-litigation’,^[43] may distort an assessment of discovery and the development of reform recommendations in consequence. In a submission to this Inquiry, the Litigation Law and Practice Committee of the Law Society of New South Wales included the following caution:

While complex, multiparty, document-intensive litigation, such as the ‘C7’ case, highlight the problems posed by the increasing quantity of electronic information generated in contemporary trade and commerce and the growing capacity of electronic document storage and management systems, the Committee warns against establishing matters of policy underlying discovery based on anecdotal evidence or particular case examples. While some case examples are useful … to identify potential issues or perceived problems, they need to be supported on a wider basis in order to inform policy development.^[44]

1.43 The Queensland Law Society also advised caution

against adopting any significant reforms without further studies of the issues arising in discovery, the underlying causes of those issues, a detailed process of consultation with all relevant stakeholders, and consideration of the potential for unintended consequences.^[45]

1.44 In another submission, Michael Legg of the University of New South Wales similarly warned that

anecdotal evidence must be treated with great care as there is no way to ensure its reliability. People suffer from bounded rationality leading to the use of heuristics, or rules of thumb, that can produce unreliable results. For example, individuals tend to make predictions by extrapolating from highly salient and memorable events even when those events are statistically aberrational. In the current context legal practitioners may assess the operation of discovery based on their most salient memories, which might be a particular negative experience.^[46]

1.45 In the Consultation Paper, the ALRC put forward a proposal for data collection on the costs associated with the discovery of documents and the proportionality of a discovery process.^[47] Legg submitted that this might be considered ‘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’.^[48] The proposal in relation to data collection is considered in Chapter 2.

ALRC processes

1.46 The process of building the evidence base in each ALRC inquiry depends on two principal variables: the nature and scope of the inquiry, and the timeframe in which it is to be discharged. The timeframe may put limits on the methodologies that may be used to answer the research questions in a particular inquiry, limiting the development of the evidence base. In such cases, the reform recommendations have to be modified accordingly.

1.47 If the timeframe and resources permit, the evidence base may include empirical work. An assertion that the costs of discovery are often high and disproportionate is amenable to such empirical investigation. Without such investigation, the available data is limited. As the Law Council of Australia (Law Council) commented:

The general proposition emerges from literature research and anecdotally that in Australia:

• discovery is generally unproblematic; and

• cost blow-outs, delay, and discovery abuse (to the extent that it occurs) are largely confined to cases involving larger complex litigations.

In terms of exploring how efficiently and effectively the process of discovery performs within the Australian federal courts system, so far as larger complex litigation is concerned there remains little if any recent empirical data.^[49]

1.48 In the landmark Managing Justice report—the outcome of an inquiry extending over four years—the ALRC was able to undertake significant empirical work in relation to costs. This was described as ‘the largest and most comprehensive empirical study of case files and case cost information from the Federal and Family Courts and the [Administrative Appeals Tribunal]’.^[50] Such an evidence base provided a substantial foundation for the law reform recommendations in that report. In this Inquiry—due to time and resource constraints—only a limited form of data collection was undertaken through a questionnaire, noted below. In addition, reference was made to the work of other inquiries. As it turned out, only two responses were received to the questionnaire.

1.49 In this Inquiry the ALRC identifies many areas of concern, in relation to which further evidence would be needed to support specific reforms. As noted by the Law Council of Australia:

While the Law Council supports the review and reform of the discovery process, and is of the opinion that amendments could be made, further research is required before any substantial changes are introduced.^[51]

1.50 Reform in relation to the discovery of documents must be placed in the context of ongoing review of Federal Court procedures. Moreover, to provide a foundation for the consideration and testing of reforms, data collection needs to be undertaken on an ongoing basis, as discussed in Chapter 3.

1.51 However, there are other critical ways of building an evidence base. In the evaluation of the evidence and the formulation of the direction of reform in each inquiry, the ALRC undertakes community consultation and is assisted by the establishment of a panel of experts as an Advisory Committee and the appointment of part-time Commissioners, as described further below.

Community consultation and participation

1.52 A major aspect of building the evidence base to support the formulation of ALRC recommendations for reform is community consultation, acknowledging that widespread community consultation is a hallmark of best practice law reform.^[52] Under the terms of its constituting Act, the ALRC ‘may inform itself in any way it thinks fit’ for the purposes of reviewing or considering anything that is the subject of a reference.^[53] The nature and extent of this engagement is normally determined by the subject matter of the reference—and the timeframe in which the inquiry must be completed under its Terms of Reference.

1.53 A multi-pronged strategy of seeking community comments was adopted during this Inquiry. First, internet communication tools—an e-newsletter and blog—were used to provide information and obtain comment; secondly, a Consultation Paper was released and submissions sought in response; thirdly, a round of consultation meetings, roundtables and seminars was conducted; and, fourthly, a questionnaire was used to obtain information about practitioners’ experiences of the costs of discovery.

Online tools

1.54 Regular e-newsletters provided a way to keep interested people informed about progress in the Inquiry on a regular basis. E-newsletters included a calendar of consultations or other key events in the upcoming month, a summary of consultations and other work in the past month, and links to relevant media releases, publications and other materials—such as the report of the Access to Justice Taskforce. Each
e-newsletter also linked to the Inquiry blog, offering insight into particular issues the ALRC was considering during the review, and facilitated public discussion of those issues.

Consultations

1.55 Consultations for this Inquiry were held with a number of government agencies, academics, judges, members of the legal profession, litigation funders, community legal centres and public interest advocates. The ALRC is based in Sydney but, in recognition of the national character of the Commission, consultations are conducted around Australia during inquiries, dependent on the nature of the matter under consideration and budget. In this Inquiry 47 consultations were conducted as listed in Appendix 2.

1.56 The ALRC also maintains an active program of direct consultation with interested parties, including regular briefings to key staff in the Australian Government Attorney-General’s Department.

1.57 The Law Council commented favourably about the consultation process in this Inquiry:

The Law Council regularly contributes to ALRC inquiries and acknowledges the extensive amount of time and effort taken in preparing consultation papers. The Law Council found the ALRC highly flexible and considerate in conducting consultations during this Inquiry. Representatives from various Law Council Sections and Law Council Committees were contacted well in advance of the consultation paper being released and invited to private consultations with ALRC staff, including the ALRC’s President.^[54]

Consultation Paper

1.58 The ALRC released a Consultation Paper in November 2010 seeking submissions to the Inquiry in response to 53 questions and 15 proposals, or for interested parties to provide comment on the background material and analysis provided, in order to advance the reform process in the Inquiry. One submission commended the Consultation Paper as providing ‘a thorough overview of the existing procedures as well as raising many sensible proposals for dealing with some of the practical problems regarding discovery’.^[55]

1.59 The ALRC received 30 submissions in this Inquiry, a full list of which is included in Appendix 1. Submissions were received, for example, from the Family Court of Australia, Australian Government departments, professional bodies, law firms, individuals, public interest organisations, academics, community legal centres and firms specialising in document management.

1.60 The ALRC acknowledges the considerable amount of work involved in preparing submissions and the impact, particularly in organisations with limited funding, of committing staff resources to this task. It is the invaluable work of participants that enriches the whole consultative process of ALRC inquiries and the ALRC records its deep appreciation to all participants.

Questionnaire

1.61 In an attempt to broaden the evidence base in this Inquiry, the ALRC developed a questionnaire to gauge practitioners’ impressions—based on practical experience—of the degrees to which discovery costs weigh against the overall expenses of litigation, the complexity of the issues in dispute, the stakes in the litigation and the value of the documents sought in the context of the litigation.^[56] While the aim was to contextualise discovery costs in terms of the nature of the proceedings in which documents were sought and the value of the documents in the context of the litigation, only two responses were received.^[57] The responses are considered in Chapter 3.

Seminars

1.62 The ALRC conducted two public seminars immediately on the release of the Consultation Paper—one in Melbourne on 17 November 2010 and one in Sydney on 18 November 2010. The Melbourne seminar, entitled ‘Conduct of Lawyers in Discovery: Room for Improvement?’, was jointly hosted by the ALRC and the Civil Justice Research Group of the Faculty of Law, University of Melbourne. The session was moderated by Professor Camille Cameron, Director, Civil Justice Research Group and Professor Christine Parker of Melbourne Law School. Panellists included: Professor Rosalind Croucher (President, ALRC); the Hon Justice Ray Finkelstein (Federal Court); Georgina Hayden (Chief Legal Officer, Australian Securities and Investments Commission); Sue Laver (General Counsel Corporate Strategy and Customer, Experience and General Counsel Dispute Resolution, Telstra); Bernard Murphy (Chair, Maurice Blackburn Pty Limited); and Stuart Clark (Partner and Chief Operating Officer, Clayton Utz).

1.63 The Sydney seminar comprised a panel discussion on the Inquiry and was held in the ceremonial court of the Federal Court. Moderated by ALRC President Professor Rosalind Croucher and introduced by Federal Court Chief Justice Patrick Keane, panel members included: the Hon Justice Peter Jacobson (Federal Court); Rebecca Gilsenan (Principal, Maurice Blackburn Lawyers); and Stuart Clark (Partner and Chief Operating Officer, Clayton Utz).

Appointed experts

1.64 In addition to the contribution of expertise by way of consultations and submissions, specific expertise is also obtained in ALRC inquiries through the establishment of its Advisory Committees and the appointment by the Attorney-General of part-time Commissioners. A full list of the Advisory Committee and Commissioners is set out at the front of this Report.

Advisory Committee

1.65 While the ultimate responsibility for the Report and recommendations remains with the Commissioners of the ALRC, the establishment of a panel of experts as an Advisory Committee, appropriate to the Terms of Reference, is an invaluable aspect of ALRC inquiries—assisting in the identification of key issues, providing quality assurance in the research and consultation effort, and assisting with the development of reform proposals. In this Inquiry, the Advisory Committee included Federal Court judges, senior officers of Australian Government agencies, academics and senior lawyers.

Part-time Commissioners

1.66 In addition to the Advisory Committee, two part-time Commissioners, both Federal Court judges, were appointed to the ALRC by the Attorney-General specifically to contribute to this Inquiry: the Hon Justice Arthur Emmett and the Hon Justice Bruce Lander. The ALRC was also able to call upon the expertise and experience of its two standing part-time Commissioners, also judges of the Federal Court: the Hon Justice Susan Kenny and the Hon Justice Berna Collier.