Summary

11.1 In the Consultation Paper, the ALRC discussed pre-trial oral examinations, pre-action protocols and interim disclosure orders in the context of possible ‘alternatives’ to discovery. This chapter primarily focuses on pre-action protocols. It does so for two reasons. First, the United Kingdom (UK) and a number of Australian jurisdictions have advocated their use in order to encourage the swift resolution of civil disputes without the traditional expense caused by, and adversarial approach exhibited in, civil litigation. Secondly, the ALRC’s Consultation Paper asked for views on a number of questions related to pre-action protocols as well as its initial proposal for reform.^[1]

11.2 The chapter explains what pre-action protocols are, including perceived advantages and disadvantages. It outlines the use of both specific and general pre-action protocols in the UK and legislative developments in Australia. The chapter then considers issues in successfully implementing pre-action protocols and analyses comments made in submissions about the various implementation issues and the ALRC’s initial proposal that specific pre-action protocols be developed for particular types of civil dispute in the federal sphere. After the evaluation of available evidence, the ALRC has decided not to make recommendations in relation to the use of pre-action protocols. This decision was made because the ALRC acknowledges that the aims underlying pre-action protocols are broader than simply ameliorating problems with discovery, even if their use can produce indirect improvements to the discovery process. The ALRC concludes that it would be inappropriate to recommend the adoption of specific pre-action protocols from the perspective of wanting to address problems with discovery, when their introduction raises a number of much broader considerations.

11.3 The ALRC’s Consultation Paper asked one question about interim disclosure orders and one on how to ensure that other possible alternatives were taken into account.^[2] Accordingly, these issues, and other possible alternatives, are the subject of less detailed consideration. The chapter concludes by stating that it would be inappropriate for the ALRC to comment further about these issues given the low level of discussion of them in submissions and, in two cases, given the constraints of the Terms of Reference in this Inquiry.