Judicial case management

7.3 Stronger judicial control over the scope and process of discovery has been singled out by some commentators as critical to discovery reform. For example, in its 2006 report on case management innovations in the Federal Court, the Law Council of Australia (Law Council) recommended that ‘discovery should be dealt with at the Case Management Conference with the Docket Judge taking an active role in the speedy resolution of issues as to the scope and timetable for discovery’.^[1] These aspirations were taken up by the Hon Justice Ray Finkelstein in 2008 at a workshop on case management reforms:

The key to discovery reform lies in active and aggressive judicial case management of the process. The most effective cure for spiralling costs and voluminous productions of documents is increased judicial willingness to just say no.^[2]

7.4 Other Australian jurisdictions, most recently Victoria, have also tied discovery reform to stronger judicial case management. The Victorian Law Reform Commission (VLRC) stated, in its Civil Justice Review, that ‘increased judicial management of the disclosure process … will greatly assist in keeping the scope of disclosure focused and reduce delay and costs’.^[3] Other jurisdictions have also concluded that improvements to the discovery process are a matter for judicial case management. For example, the Hong Kong Chief Justice’s Working Party on Civil Justice Reform found ‘a broad consensus that the excesses of discovery ought to be tackled by appropriate case management by the courts’.^[4]

Case management powers

7.5 The VLRC’s Civil Justice Review recommended ‘the introduction of more clearly delineated and specific powers to facilitate proactive judicial case management in relation to discovery’.^[5] Accordingly, the report included draft provisions based in part on the Rules of the Supreme Court 1971 (WA) and the Supreme Court Civil Rules 2006 (SA). The substance of these provisions was enacted in s 55 of the Civil Procedure Act 2010 (Vic). Section 55 provides that ‘a court may make any order or give any directions in relation to discovery that it considers necessary or appropriate’ and then gives an extensive, but non-exhaustive, list of directions that Victorian courts may give in relation to discovery. A court may make any order or give any directions:

(a) requiring a party to make discovery to another party of—

(i) any documents within a class or classes specified in the order; or

(ii) one or more samples of documents within a class or classes, selected in any manner which the court specifies in the order;

(b) relieving a party from the obligation to provide discovery;

(c) limiting the obligation of discovery to—

(i) a class or classes of documents specified in the order; or

(ii) documents relating to one or more specified facts or issues in dispute;

(d) that discovery occur in separate stages;

(e) requiring discovery of specified classes of documents prior to the close of pleadings;

(f) expanding a party’s obligation to provide discovery;

(g) requiring a list of documents be indexed or arranged in a particular way;

(h) requiring discovery or inspection of documents to be provided by a specific time;

(i) as to which parties are to be provided with inspection of documents by another party;

(j) relieving a party of the obligation to provide an affidavit of documents;

(k) modifying or regulating discovery of documents in any other way the court thinks fit.

7.6 Section 55(3) of the Civil Procedure Act also provides that a court may make any order or give any directions requiring a party discovering documents to:

(a) provide facilities for the inspection and copying of the documents, including copying and computerised facilities;

(b) make available a person who is able to—

(i) explain the way the documents are arranged; and

(ii) help locate and identify particular documents or classes of documents.

7.7 While the Federal Court of Australia Act does not include this level of detail, the Federal Court does have authority to make such orders in relation to discovery. However, the source of the Federal Court’s power to make discovery orders is largely found in subordinate legislation—O 15 of the Federal Court Rules—or in its inherent jurisdiction.

7.8 The Federal Court of Australia Act was amended in 2009 to provide ‘clear legislative direction and support to judges so that they can confidently employ active case management powers’.^[6] While the Act does not specify the kinds of orders the Court may make in relation to discovery, it provides that the Court may, among other things, ‘require things to be done’ and ‘set time limits for the doing of anything, or the completion of any part of the proceeding’.^[7]

7.9 Greater specification of the Court’s case management powers in legislation would not necessarily increase the Court’s powers. However, it might raise awareness of the ways in which discovery can be managed and encourage greater and more effective use of case management powers. As the VLRC reasoned in its Civil Justice Review:

Expanding discovery case management powers should encourage the judiciary and the parties to be more proactive in confining the scope of discovery and ensuring that the process assists rather than hinders the administration of justice.^[8]

Sanctions

7.10 A court’s powers to sanction non-compliance with discovery orders may also be prescribed in more or less detail in legislation. The Victorian Civil Procedure Act sets out a range of orders the Court may make, without limiting the Court’s power to sanction a failure to comply with discovery obligations or other conduct amounting to abuse of the discovery process.^[9] The VLRC argued that:

More clearly defined sanctions will also encourage parties to work towards the efficient resolution of discovery issues and discourage the use of discovery as an adversarial tool.^[10]

7.11 Section 56 of the Civil Procedure Act now provides:

(1) A court may make any order or give any direction it considers appropriate if the court finds that there has been—

(a) a failure to comply with discovery obligations; or

(b) a failure to comply with any order or direction of the court in relation to discovery; or

(c) conduct intended to delay, frustrate or avoid discovery of discoverable documents.

(2) Without limiting subsection (1), a court may make an order or give directions—

(a) that proceedings for contempt of court be initiated;

(b) adjourning the civil proceeding, with costs of that adjournment to be borne by the person responsible for the need to adjourn the proceeding;

(c) in respect of costs in the civil proceeding, including indemnity cost orders against any party or a legal practitioner who is responsible for, or who aids and abets, any conduct referred to in subsection (1);

(d) preventing a party from taking any step in the civil proceeding;

(e) prohibiting or limiting the use of documents in evidence;

(f) in respect of facts taken as established for the purposes of the civil proceeding;

(g) awarding compensation for financial or other loss arising out of any conduct referred to in subsection (1);

(h) in respect of any adverse inference arising from any conduct referred to in subsection (1);

(i) compelling any person to give evidence in connection with any conduct referred to in subsection (1), including by way of affidavit;

(j) dismissing any part of the claim or defence of a party who is responsible for any conduct referred to in subsection (1);

(k) in relation to the referral to an appropriate disciplinary authority for disciplinary action to be taken against any legal practitioner who is responsible for, or who aids and abets, any conduct referred to in subsection (1).

7.12 In the Federal Court of Australia Act, the sanction powers are equally broad, but outlined in less detail. Section 37P(2) provides that, if a party fails to comply with a direction given by the Court or a judge, the Court or judge ‘may make such order or direction as the Court or Judge thinks appropriate’.^[11] In particular, the Court or judge may:

(a) dismiss the proceeding in whole or in part;

(b) strike out, amend or limit any part of a party’s claim or defence;

(c) disallow or reject any evidence;

(d) award costs against a party;

(e) order that costs awarded against a party are to be assessed on an indemnity basis or otherwise.^[12]

7.13 The Federal Court’s power to make costs orders and to refer legal practitioners to appropriate disciplinary authorities for failures to comply with discovery obligations are discussed, respectively, in Chapters 9 and 12 of this Report.

Submissions and consultations

7.14 In the Consultation Paper, the ALRC proposed that pt VB of the Federal Court of Australia Act be amended to provide the Court with broad and express discretion to exercise case management powers and impose sanctions in relation to the discovery of documents, in line with ss 55 and 56 of the Victorian Civil Procedure Act.^[13]

7.15 Although a few submissions supported this proposal,^[14] most did not, noting that the Federal Court already had the power to manage the discovery process effectively.^[15] The Law Council, for example, submitted that amendments in line with the Victorian Act were not necessary, as the Court ‘already has discretion under the Federal Court of Australia Act 1976 (Cth) and through the Federal Court Rules (Cth)’.^[16] A group of large law firms argued that the Rules and Federal Court Practice Note CM 5 ‘outline with sufficient particularity the case management powers the Court may employ in determining an application for discovery’.^[17]

7.16 The Law Society of Western Australia submitted that a broad discretion applicable generally was preferable, ‘rather than a specific and express power with respect to a particular aspect of the litigation process, namely discovery of documents’.^[18]

7.17 While some agreed with the ALRC’s preliminary view that express powers in the primary legislation might increase awareness, and therefore the use, of the case management powers,^[19] others suggested that it was unlikely to have that effect, and that greater judicial education and a culture shift were necessary instead.^[20] Allens Arthur Robinson submitted that it was not the availability of case management powers and sanctions that caused concerns, but ‘the manner in which those powers are currently exercised’:

Lenience is often shown where a party wilfully or negligently fails to comply with the rules or a timetable … New or more express powers would not address these concerns unless the Court exercises its discretion more strictly and consistently. Instead, judges and special masters should be encouraged, through judicial education or otherwise, to make greater use of their existing case management powers and to monitor more closely the parties’ compliance with the timetable.^[21]

ALRC’s views

7.18 If changes were to be made to the Federal Court of Australia Act to articulate more clearly the Court’s existing statutory powers to manage the discovery process, this may encourage judges, the parties and practitioners actively to confine the scope of discovery and reduce the burden of litigation. Placing specific detailed powers in primary legislation could help drive cultural change in civil litigation in federal courts.

7.19 It is debatable, however, whether prescribing the Federal Court’s case management powers in greater detail in legislation would generate such an improvement in the discovery process. Unless the Court actually uses its case management powers or the parties actively petition the Court to control the discovery of documents—and unless the Court, on its own initiative, imposes sanctions on parties abusing the discovery process, or the abused party actively seeks those Court sanctions—the changes envisaged by the VLRC might not materialise.

7.20 Given that most submissions that addressed this question did not support the proposal, and given the limited evidence that the proposal would have the desired effect, the ALRC has decided not to make a recommendation to prescribe in detail such powers in the Federal Court of Australia Act. Instead, the ALRC suggests that the Federal Court consider whether articulating in practice notes some of the specific ways the Court might exercise its broad powers in relation to discovery, including its powers to order sanctions, might serve to drive cultural change and generate certainty of expectations and obligations. This would alert practitioners, and remind the Court, of the range and flexibility of the powers available to the Court. As discussed later in this chapter, the powers might also be considered in greater detail in judicial education programs and court bench books. These suggestions are intended not to fetter the Court’s discretion, but simply to encourage the appropriate and targeted use of the existing powers by articulating them in material that the Court, parties, practitioners often refer to.

7.21 The ALRC also suggests that policy makers study whether the articulated powers in the Civil Procedure Act 2010 (Vic) serve to encourage stronger and more effective judicial management of discovery. The question of whether to include similar powers in the Federal Court of Australia Act may therefore be usefully reconsidered in the future.