Summary

10.1 The Terms of Reference direct the ALRC, in conducting its Inquiry, to have regard to alternatives to discovery.^[1] The ALRC is also to consider issues to limit the overuse of discovery and to ensure key documents relevant to the real issues in dispute are defined as early as possible. One of the ‘alternatives’ to discovery that was discussed in the ALRC’s Consultation Paper was pre-trial oral examinations.

10.2 This chapter explains what pre-trial oral examinations are, including perceived advantages and disadvantages. It outlines the use of oral depositions in the United States (US) and Canada as well as oral deposition-like processes in Australia. In particular, the chapter explores existing powers in the Federal Court of Australia Act 1976 (Cth) and in the Federal Court Rules (Cth). It notes the uncertainty as to whether these provisions may be interpreted in such a way as to facilitate pre-trial oral examination for discovery. The chapter then analyses comments made in submissions about whether there is a need for a new procedure in Federal Court civil practice and about perceived advantages and disadvantages—including likely costs. The ALRC concludes that there is sufficient evidence to support the use of pre-trial oral examination for discovery in specific cases, such as where it would not be cost prohibitive.

10.3 The ALRC’s initial proposal was for a new pre-trial procedure to be introduced for oral examination of any person who has information relevant to the matters in dispute. However, after noting concerns raised in submissions that the ALRC was proposing an ‘alternative’ to the current case management system rather than an additional discovery ‘tool’, and considering the uncertainty of the interpretation of the relevant provisions in the Federal Court of Australia Act and the Federal Court Rules, the ALRC has decided not to make a recommendation in the form of its initial proposal. Rather, it considers that the Federal Court of Australia Act should be amended to provide expressly that the Federal Court or a judge may order pre-trial oral examination about discovery. As the ALRC is of the view that such a procedure should only be by leave of the Court, the ALRC’s second recommendation in this chapter is that the Federal Court Rules should be amended to provide expressly the limited circumstances in which the Court or a judge may order pre-trial oral examination about discovery.