Introduction

1.1 On 10 May 2010 the Attorney-General of Australia, the Hon Robert McClelland MP, asked the Australian Law Reform Commission (ALRC) to explore options to improve the practical operation and effectiveness of discovery of documents in proceedings in federal courts.

1.2 The Inquiry was initiated following a recommendation in the report of the Australian Government Attorney-General’s Department’s Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System (Strategic Framework).^[1]The underlying premise for this Inquiry was that the costs of discovery, which can be very high, may inhibit access to justice and generate, in addition, an undue public cost. As noted in a submission to this Inquiry:

The cost of litigation is borne not by those who choose to litigate but by the broader community, and may impede access to justice.^[2]

1.3 The specific objective of this Inquiry was to identify law reform options to improve the practical operation and effectiveness of discovery of documents in federal courts.^[3]

1.4 This chapter provides an outline of the background to the Inquiry and an analysis of its scope as defined by the Terms of Reference. It also describes the development of the evidence base to support the law reform response as reflected in the recommendations. The chapter concludes with an overview of the Report. The framework for reform, including the conceptual background and the principles for reform, are considered in Chapter 2.