High Court of Australia

Obligation to discover documents

4.2 There are no specific provisions in the High Court Rules 2004 (Cth) imposing an obligation on parties to discover relevant documents. Should circumstances arise in proceedings before the High Court that necessitate the discovery of documents, a party may apply to the Court for directions.^[1]

Range of discoverable documents

4.3 In the absence of specific provisions or directions to the contrary, the ‘train of inquiry’ test, as propounded in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co^[2] (Peruvian Guano) and adopted in Australia,^[3] remains the test of general application for discovery in the High Court. In the Peruvian Guano case, Brett LJ stated:

It seems to me that every document relates to the matters in question in the action, which not only would be evidenced upon any issue, but also which, it is reasonable to suppose, contains information which may—not which must—either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words ‘either directly or indirectly’ because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.^[4]

Process of discovery

4.4 There are no provisions in the High Court Rules setting out a process for the discovery of documents. Where discovery is necessary in High Court proceedings, the Court or a judge determines what procedure is to be adopted and may give directions.^[5]