Other possible alternatives

Civil jurisdictions

11.157 The ALRC notes the suggestion that reforms should also consider civil law jurisdictions, such as that in Germany, as one possible alternative to discovery in federal courts.^[251]

11.158 Only one submission mentioned the German model.^[252] A group of law students reviewed the German system and concluded that it was not the most instructive, ‘[g]iven the differing legal heritage and procedure of common and civil law jurisdictions’.^[253]

11.159 As noted in the Consultation Paper, the ALRC considers that a review of the civil law system, and how it deals with discovery, is beyond its Terms of Reference.^[254] Chapter 2 discussed the civil law tradition.

Ensuring other possibilities are considered

11.160 In the Consultation Paper, the ALRC asked for stakeholder views about the best way to ensure that federal courts consider alternatives to the discovery of documents in civil proceedings.^[255]

11.161 Only two submissions addressed this question.^[256] They advanced four possibilities to ensure that federal courts considered alternatives to the discovery of documents in civil proceedings, namely:

• consultation with relevant stakeholders;^[257]

• a court rule or practice note;^[258]

• judicial education;^[259] or

• an innovative judicial decision.^[260]

11.162 The Law Council submitted that the ‘best way’ was through consultation with relevant stakeholders.^[261] It suggested that:

representatives of the Australian Government and the Federal Court and relevant stakeholders should meet to discuss alternatives to the discovery of documents in civil proceedings.^[262]

11.163 By contrast, Legg submitted:

A practice note that links minimising the cost of discovery to the overarching purpose by requiring consideration of whether the information sought can be obtained from another source or through an alternative mechanism for accessing documents that is cheaper and quicker than discovery, would be a starting point. There then needs to be some examples of what those other sources or mechanisms may be. In terms of mechanisms it may mean using subpoenas, interrogatories or depositions instead of discovery if they are more efficient.^[263]

11.164 The four possibilities advanced in submissions all appear to be sound ways of ensuring that federal courts consider alternatives to the discovery of documents in civil proceedings. As this issue generated such a low level of discussion, the ALRC considers that it would be inappropriate to comment other than to suggest that Australian Government policy makers, members of the judiciary, and judicial education providers may possibly find it useful to reflect on these possibilities.