6.1 This chapter examines civil practice and procedure for the discovery or disclosure of documents in proceedings before federal courts. Issues about case management and the strategies employed to facilitate the process of discovery or disclosure in federal court proceedings are explored, including discussion of relevant practice notes, directions and guidelines on discovery in Australia and other jurisdictions.
6.2 The Federal Court of Australia uses case management strategies to limit discovery obligations to specific categories of documents. This chapter examines a number of ways to highlight especially important issues in dispute, in order to focus the categorisation of documents for discovery. The ALRC considers that these procedures should be adopted where appropriate in the circumstances of each case.
6.3 The use of technology in the process of discovering electronically-stored information (ESI) in Federal Court proceedings is also considered in this chapter. The ALRC recommends the introduction of procedural obligations in the Federal Court, in suitable cases, for the development of discovery plans setting out the practical steps required of the parties in the process of discovery. Discovery plans would be required, at the Court’s direction, before orders for discovery are made, so that the time and cost implications of the discovery process may be taken into account.
6.4 The ALRC recommends that best-practice guidelines should be established in the Federal Court to direct the formation and content of discovery plans. In addition, the ALRC recommends that arrangements should be put in place for these reforms in the Federal Court to be monitored and assessed.
6.5 This chapter also examines disclosure practices in the Family Court of Australia, which the ALRC understands are usually carried out successfully. It also considers whether the detailed disclosure processes set out in the Family Law Rules should be adopted in the Federal Magistrates Court family law jurisdiction. The ALRC considers that such reform would be inappropriate for the Federal Magistrates Court, which is intended to deal with less complex matters as informally as possible.
6.6 The ALRC is not aware of any concerns with discovery procedure in the High Court of Australia, or the Federal Magistrates Court’s general civil law jurisdiction.