Introduction—the reform challenge

2.1 This Report contains 27 recommendations for reform. The recommendations reflect, on the one hand, the Government’s broad objective expressed in report of the Australian Government Attorney-General’s Department Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Justice System (Strategic Framework),of ‘ensuring that the cost of and method of resolving disputes is proportionate to the issues’,[1] and the specific objective as signalled in the Terms of Reference, of identifying law reform options to improve the practical operation and effectiveness of discovery of documents in federal courts.[2] On the other hand, the recommendations are underpinned by a framework of principles that provide the policy foundation for the law reform solutions contained in this Report.

2.2 This Inquiry focuses on one aspect of practice in the federal courts—the discovery of documents. In advancing law reform recommendations in relation to discovery, the ALRC was mindful of the need to consider the practice in its litigation context, and not in isolation. In a submission to this Inquiry, the Australian Taxation Office emphasised that:

It is both important to the cultural change necessary for a change to discovery, but also to litigation generally, that discovery reform be an element of overall efficient case management, rather than a discrete aspect of litigation.[3]

2.3 Some issues, like pre-action steps and costs, are systemic issues. Discovery may be an issue of concern in both respects, but not in isolation. Where issues are of a systemic kind, the ALRC considers that reform is best considered more generally, not through the lens of a specific doctrine—such as discovery.

2.4 This chapter includes two parts: the first provides a brief analysis of the policy landscape in which discovery operates, including an evaluation of its rationale, its adversarial context and a consideration of the policy tensions presented in a review of its operation; the second provides an outline of the key principles embodied in the recommendations for reform.

[1] Australian Government Attorney-General’s Department, Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System (2009), 64.

[2] The Terms of Reference are set out at the front of this Report.

[3] Australian Taxation Office, Submission DR 14, 20 January 2011.