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Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act 2014 (the Act)

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Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act 2014 (the Act)

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Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act 2014 (the Act).

An Act to amend the Civil Procedure Act 2010 to provide for further case management powers in relation to discovery and disclosure.

This article will focus on the amendments to the Civil Procedure Act 2010 and the impact on civil matters and how parties (with the help of the Court) can resolve disputes more efficiently.

In General

By its own explanatory memorandum, the Act introduces the following new concepts:

  • A statement of issues may be used in a proceeding in any manner considered appropriate by a court to further the overarching purpose (being the just, efficient, timely and cost effective resolution of the real issues in dispute).
  • A court may order or give directions limiting the obligation of discovery to a class or classes of documents or to documents relating to one or more specified facts or issues in dispute.
  • A court may order (with the consent of the parties) that all relevant documents be discovered relating to the proceeding, even if those documents would not ordinarily be discoverable.
  • A court may order or direct a party to pay a specified amount to another party in relation to the costs of discovery in any manner the court considers appropriate.

The main idea behind the Act is to address some of the cost and delay issues in civil litigation by largely giving the judiciary more power and discretion in managing cases. In particular, the Act seems to be targeting the more complex and lengthy cases where the discovery obligation of each party is quite onerous. The Act has had input and advice from the Civil Procedure Advisory Group which is chaired by the Chief Justice of the Supreme Court.

In Particular

Clause 5 of Act enables a court to have the parties draft and file a statement of issues in a proceeding. A statement of issues would narrow the focus of the parties (and the court) to the key issues in dispute. However, this power also comes with the caveat that such a statement is not to displace the function of pleadings in a proceeding, but rather to work parallel. Often in complex commercial litigation statements of claim, defences and counterclaims can be very lengthy and voluminous, and rightly so. The Act hopes that a less formal statement of issues would also limit the scope of the discovery process and focus the attention of the parties in their requests for discovery – as opposed to imposing on each party the broad discovery obligation to discover any relevant documents that are not privileged. Clause 6 gives a court the power to limit the obligation of discovery to the issues outlined in a statement of issues. If the parties cannot agree on the wording of a statement of issues, the court may settle same.

Clause 6 also gives a court discretion to order that a party requesting discovery pay part, or all, of the costs of providing the requested documents. This could include a direction that a specified amount be paid in advance. This power seems aimed at reducing costly discovery by allowing a court to employ this power when a party requests discovery of documents where their merit and/or relevancy is uncertain. From the Attorney-General’s second reading speech, “a court will be able to say to a party that is seeking discovery of debatable or unclear merit ‘If you want it, you pay for it’.” A criticism of this clause, as it is drafted, may be that it is a very broad discretion and does not refer specifically to the intended use as articulated by the Attorney-General. There is no mention of circumstances under which this power would be invoked along the lines referred to above. Instead we must hope a court will exercise its discretion in the interests of justice and to further the overarching purpose.

Clause 7 of the Act allows a court to order that all relevant documents in a party’s possession or control be discovered even if those documents would not ordinarily be discoverable – provided all parties consent. This power appears to be addressing cases where it is very time consuming to sort through documents related a proceeding in order to remove privileged documents, especially when a party sees there is little risk of providing a privileged document to another party or that even if a privileged document was provided, it would not affect that party’s case. The consent of all parties is an important requirement so as to prevent one party using it for purely tactical reasons. Importantly, the Act provides that privilege is not waived with respect to documents provided under this power. Each party however retains the right not to disclose any privileged documents. Should the court make an order under this new power, a party removing any privileged documents would need to provide a list of the documents removed and state the grounds on which privilege is claimed.

Conclusion

Essentially by narrowing the issues in dispute between parties and by facilitating more efficient case management in relation to the discovery process, this Act aims to reduce the delay and cost of complex commercial litigation.

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