New rules on discovery should be applauded

13 February 2012 | By Ian Dallen (Partner)

In an age where parties create, send, receive and store vast amounts of information in various formats, including in an array of electronic formats, discovery has become the very antithesis of its object; uneconomical and inefficient, albeit truth seeking. It is therefore refreshing to see the return of necessity as the express foundation for discovery in the new Federal Court rules.

On 1 August 2011 the Federal Court of Australia repealed its existing Rules and replaced them with what the Court heralded as "a modern set of rules more appropriate for" litigation today.

These new Rules were premised upon the statutory "overarching purpose" of civil practice and procedure in the Federal Court, namely: "to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible".

One of the key changes were new rules governing discovery to ensure the Court has at all times control over the discovery process.

In essence, discovery is to be given "only if it is necessary for the determination of the issues in the proceeding" (Rule 20.11), and a concept of "standard discovery" has been introduced (Rule 20.14).

"Standard discovery" is limited to documents "directly relevant to issues raised in the pleadings or in the affidavits ... of which, after a reasonable search, the party is aware" and will be the norm for uncomplicated matters.

These changes followed closely after the Australian Law Reform Commission published in 2011 a report titled Managing Discovery making various policy recommendations to improve the operation and effectiveness of discovery in federal courts because it found that:

In almost all studies of litigation, discovery is singled out as the procedure most open to abuse, the most costly and the most in need of court supervision and control.

Interestingly, this "change" is really a return to what the Court of Chancery had (by the mid 18th century – some 260 years ago) recognised as the "object" of discovery, namely:

  • To reveal all relevant material facts (the truth seeking purpose);
  • To avoid or prevent expense in litigation (the economy purpose); and
  • To determine litigation as expeditiously as possible (the efficiency purpose).

Whilst there was (and always will be) an obvious tension between the truth seeking purpose on the one hand and the economy and efficiency purposes on the other, the Court of Chancery traditionally balanced these three pillars of discovery by insisting upon "necessity" as their foundation.

"Necessity" in this sense required active judicial management to ensure that discovery was within the confines of the substantive case pleaded, could not extend beyond the material facts necessary to make out that case, did not extend beyond what was truly in dispute and was not oppressive.

The return of necessity as the express foundation for discovery in the new Federal Court rules should be applauded and will help to ensure the just, cost effective and efficient resolution of civil litigation in the Federal Court of Australia.

The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.

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Ian Dallen

Partner. Sydney
+61 2 9210 6243