5.1 This chapter examines issues about parties’ right to discovery and the scope of general disclosure obligations in proceedings before the federal courts. Parties’ right to discovery in the Federal Court of Australia (Federal Court) is regulated by the requirement for leave of the Court.[1] The ALRC understands that this rule is not always applied in a formal and consistent manner. The ALRC supports the introduction of proposed new Federal Court Rules 2010(Cth), which restrict discovery to cases where it is necessary for the just determination of issues in the proceedings.[2] This reform promotes the principles of appropriateness and consistency, by ensuring conscious and consistent decision making by parties and judges about the appropriate use of discovery in resolving disputes.

5.2 The Consultation Paper considered the introduction of a new right to inspect key documents, prior to discovery, in Federal Court proceedings.[3] While the ALRC does not support such a rule of general application, it recommends that similar reforms implemented in Victoria should be monitored by the Federal Court. The ALRC’s preferred approach is for inspection of such documents to occur prior to discovery on a case-by-case basis under existing procedures. The ALRC recommends changes to practice notes to highlight the possibilities for inspection of critical documents prior to discovery in appropriate cases.

5.3 The scope of general discovery obligations in the Federal Court includes standard criteria for documents of ‘direct relevance’ and those which are or have been in a party’s ‘possession, custody or power’.[4] The ALRC does not support the introduction of arbitrary limits to narrow the parameters of general discovery in all cases, but considers that the better approach is for judges to tailor discovery obligations in each case. Notwithstanding this conclusion, as part of consultations on the proposed new Rules, the ALRC supports consideration of a new rule of general application to exclude from discovery any documents, to which legal professional privilege applies, that wholly came into existence after the commencement of proceedings in the Federal Court.

5.4 The duty to disclose documents in family law matters before the Federal Magistrates Court of Australia (Federal Magistrates Court) is limited in scope—compared to proceedings in the Family Court of Australia (Family Court). The ALRC does not support changes to increase the scope of disclosure in the Federal Magistrates Court. However, the ALRC recommends reform to promote parties’ right to disclosure of documents in the Federal Magistrates Court’s family law jurisdiction—to be consistent with the Family Court, so that disclosure of documents is not contingent upon any action of the Court.

5.5 The ALRC makes no recommendation for reform in relation to High Court of Australia (High Court) or Family Court proceedings, as the ALRC understands that the disclosure of documents does not present any significant issues in these jurisdictions.

[1]Federal Court Rules (Cth) O 15 r 1.

[2] Federal Court Rules (Cth) [Draft 2010] r 20.11.

[3] Australian Law Reform Commission, Discovery in Federal Courts, Consultation Paper 2 (2010), Question 3–6.

[4]Federal Court Rules (Cth) O 15 rr 2, 6.