The Australian Legal Discovery Laws Process Under Scrutiny

Canberra, ACT, Australia ( May 26, 2011

Australian Legal Discovery Laws Process Under Scrutiny

Australian Legal Discovery Laws Process Under Scrutiny

Attorney-General Robert McClelland has tabled in Parliament the Australian Law Reform Commission’s report into discovery laws and practice in federal court proceedings.

The ALRC report, Managing Discovery: Discovery of Documents in Federal Courts, recommends reforms which aim to make the discovery process more efficient and cost effective as well as provide better support for judges.

The process of discovery is where parties disclose to each other documents that are relevant to the litigation taking place.

“This report has highlighted the need to ensure the costs and methods of resolution are proportionate to the issues in dispute,” Mr McClelland said.

“Discovery of documents allows parties to proceed on an equal footing and is a critical part of Australia’s legal system.

“The report notes the high and sometimes disproportionate cost of discovery can impede access to justice for some litigants.”

The Inquiry found that discovery can be routine and straightforward in many instances. In other cases, discovery can be a complex process involving large volumes of documents. In these cases, discovery costs can be disproportionate to the utility of the documents in resolving the dispute. This has become more common in modern litigation due to new technologies enabling the creation, retention and collection of masses of electronically-stored information.

The Commission’s recommendations for reform aim to support judges in tailoring the discovery process to better suit the circumstances of each case.

The Commission also recommends clarifying the expectations of the parties and their lawyers, making their obligations more certain in advance of the discovery process and the expected costs more predictable.

“I look forward to working closely with the courts and other stakeholders in developing responses to the report,” Mr McClelland said.

This report is the result of a ten-month inquiry initiated by the Attorney-General in May 2010. It’s available on the ALRC website

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