Scope of the Inquiry

Terms of Reference

1.33 The Terms of Reference are reproduced at the front of this Report. The ALRC is directed to consider four main issues:

• the law, practice and management of the discovery of documents in litigation before federal courts;

• ensuring that cost and time required for discovery of documents is proportionate to the matters in dispute;

• to limit the overuse of discovery, reduce the expense of discovery and ensure key documents relevant to the real issues in dispute are identified as early as possible; and

• the impact of technology on the discovery of documents.

1.34 In identifying law reform options to improve the practical operation and effectiveness of discovery of documents, the ALRC was to have regard to:

• alternatives to discovery;

• the role of courts in managing discovery, including the courts’ case management;

• powers and mechanisms to enable courts to better exercise those powers in the context of discovery;

• implications of the cost of discovery on the conduct of litigation, including means to limit the extent to which discovery gives rise to satellite litigation and the use of discovery for strategic purposes;

• costs issues, for example cost capping, security for discovery costs, and upfront payment; and

• the sufficiency, clarity and enforceability of obligations on practitioners and parties to identify relevant material as early as possible.

Matters outside the Inquiry

1.35 The term ‘discovery’ is often used in the context of civil court procedure to refer to the various ways in which one party to litigation is able to obtain information and documents held by other parties. It can encompass processes by which parties disclose relevant documents to other parties and make those documents available for inspection. It may also encompass processes enabling one party to ask the other a series of questions, known as ‘interrogatories’, which the party under interrogation is required to answer, usually on oath or affirmation. The questions are designed to obtain admissions and again to apprise the interrogating party of the case to be met at trial.

1.36 In some jurisdictions, discovery may extend to documents in the possession of third parties. For example, under O 15A r 8 of the Federal Court Rules (Cth), the court may order that a person who is not a party, and appears to be in possession of any document which relates to any question in the proceeding, disclose the document to the party seeking discovery.

1.37 It is possible for an applicant to use discovery to assist in identifying potential respondents to a proceeding. In this context, discovery is preliminary in the sense that it is obtained before a proceeding for substantive relief is commenced, and is intended to facilitate the commencement of such a proceeding. For example, O 15A r 3 of the Federal Court Rules provides specific procedures for persons to attend court for oral examination or to produce documents, for the purposes of identifying the proper respondent.

1.38 Moreover, there are several other procedures available under court rules which, although not strictly encompassed by the term ‘discovery’, further assist in defining the issues in dispute and obtaining evidence for trial. These include:

• procedures for the inspection and testing of property;^[37]

• rules which facilitate the obtaining and tendering of expert evidence;^[38]

• procedures which assist a party to obtain admissions from an opposing party prior to trial;^[39] and

• the use of the subpoena process to compel the attendance of persons to give evidence at the trial or to produce documents either before or at the trial.^[40]

1.39 The Terms of Reference limit this Inquiry to the discovery of documents in litigation before federal courts. The ALRC is therefore primarily concerned with the disclosure of documents for inspection by one party to another party in proceedings for substantive relief conducted in a federal court. Other discovery procedures—such as interrogatories, preliminary discovery, discovery from non-parties or other means of obtaining information relevant to a proceeding—are not the central focus of this Inquiry.

1.40 However, consideration of options to improve the practical operation and effectiveness of discovery of documents in substantive proceedings may prompt discussion of discovery in its broader sense.