Last Updated January 31, 2019

Law and Practice

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Corrs Chambers Westgarth (Melbourne - HQ) has a market-leading Legal Technology Solutions group providing e-Discovery support to clients. It comprises over 20 e-Discovery professionals, including a significant forensic technology and analytics group that provides clients with end-to-end management of their evidence in litigation, ADR, investigations and inquiries. Corrs Chambers Westgarth has established itself as firm of choice for bet-the-company litigation throughout the country, being appointed to the most complex disputes in the country, acting for major multi-nationals and leading Australian corporates. Additionally, the firm has one of the leading class action practices in Australia – and the country has among the highest levels of class action activity in the world. Over the past 12 months, the team has been active on numerous mandates in this field, including some of the most of the prominent class actions to reach the Australian courts. The firm also play a prominent role for the Australian Government, acting in some of the highest-profile cases to reach the courts.

The approach of Australian courts to the scope of discovery differs significantly between jurisdictions.

Federal cases are covered by the Federal Court Rules 2011 (Cth). Order 20.11 of the Federal Court Rules 2011 provides that parties have a duty to facilitate the "just resolution of the proceeding as quickly, inexpensively and efficiently as possible" in the discovery process. This is reinforced in the Federal Court’s Central Practice Note: National Court Framework and Case Management (CPN-1), which provides that a "discovery applicant should not make a [discovery] request unless it will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible." Standard discovery is defined in Rule 20.14 and requires parties to disclose documents that are "directly relevant to the issues raised by the pleadings or in the affidavits." To establish this, documents must meet the criteria enumerated in Rule 20.14(2): that the documents are those on which a party intends to rely, documents that adversely affect the party’s, or another party’s, case or support another party’s case.

In Redline Contracting Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2012] FCA 1157, Siopsis J held that the scope of discovery is dependent on the issues and what is pleaded in each case. The scope of discovery is also subject to the overarching purpose and objectives under Section 37M. Under Rule 20.15, if a party is seeking a more extensive discovery than standard then the party must file an affidavit stating why the order should be made. Furthermore, they must identify the criteria that applies in Rule 20.14(1) and (2) that should not apply on the application before the court. An order for particular discovery may also be made by the court under Rule 20.21(1) where a party claims that a document or category of documents may be or may have been in another party’s control.

At the state and territory level in Australia, the civil procedure rules relating to the disclosure of documents are generally similar to the overarching purpose of the Federal Rules, focusing on the efficient just resolution of cases. Most have Technology and the Court Practice Notes that outline the protocols that parties should adhere to throughout the litigation.

In NSW, if the court orders discovery occur, discovery orders can be made with a large degree of flexibility having regard to what is needed in the case, but are usually made with reference to categories (Uniform Civil Procedure Rule 21.2). The Supreme Court of New South Wales Practice Note SC Gen 7 outlines the guidelines the court expects to be followed by the parties in managing and preparing their discovery productions.

In Victoria, there are the Victorian Supreme Court (General Civil Procedure) Rules 2015. The Supreme Court of Victoria in Matthews v SPI Electricity Pty Ltd & Ors [2011] VSC 401 at [25] held that consideration ought to be given to proportionality when an order for discovery is obtained. Therefore, it is expected that lawyers and parties minimise any unnecessary process-driven costs or delays by utilising appropriate technology to facilitate the discovery of documents. The Supreme Court also released SC GEN 5 Technology in Civil Litigation to encourage the use of technology in civil litigation and reduce undue delay and costs associated with the process.

The discovery rules in Queensland apply the test of ‘direct relevance’. Under Rule 211(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld), parties are required to disclose documents that are "directly relevant to an allegation in issue in the pleadings." Under Rule 211(1)(c), if there are no pleadings, a party is required to disclose documents "directly relevant to a matter in issue in the proceeding."

Western Australia has retained the 'Peruvian Guano' approach. Australia historically adopted the judgment of Brett L J in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (Peruvian Guano) and the principle that a party should disclose any document that "relates to any matter in question in the action." The Peruvian Guano approach provided a very wide scope of discovery, requiring parties to discover any documents that may lead to a "train of inquiry" that could advance their case or damage their adversary’s case. The test was gradually narrowed in the Federal Court and most states to reduce substantially the exorbitant costs, time and abuse of the process of discovery by well-resourced individuals. The focus now turns to the principle of proportionality.

The Peruvian Guano approach is evident in the expression used in Order 26 Rule 1 of the Rules of the Supreme Court 1971 (WA), which provides that a party must discover all documents "relating to any matter in question." Although the Peruvian Guano approach is still applied, in Corporate Systems Publishing Pty Ltd v Lingard (No 3) it was held that "there is no strict entitlement to an order for discovery" and that such an order must be considered against the backdrop of the costs and time involved with the exercise.

Corrs Chambers Westgarth

Level 17
8 Chifley
8-12 Chifley Square
Sydney NSW 2000

+61 2 9210 6500

+61 2 9210 6611

michael.do.rozario@corrs.com.au www.corrs.com.au
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Authors



Corrs Chambers Westgarth (Melbourne - HQ) has a market-leading Legal Technology Solutions group providing e-Discovery support to clients. It comprises over 20 e-Discovery professionals, including a significant forensic technology and analytics group that provides clients with end-to-end management of their evidence in litigation, ADR, investigations and inquiries. Corrs Chambers Westgarth has established itself as firm of choice for bet-the-company litigation throughout the country, being appointed to the most complex disputes in the country, acting for major multi-nationals and leading Australian corporates. Additionally, the firm has one of the leading class action practices in Australia – and the country has among the highest levels of class action activity in the world. Over the past 12 months, the team has been active on numerous mandates in this field, including some of the most of the prominent class actions to reach the Australian courts. The firm also play a prominent role for the Australian Government, acting in some of the highest-profile cases to reach the courts.

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