CON RELACION AL DIAGNOSTICO MUNICIPAL

6.32 For the Court to case manage a discovery process effectively, the parties need to define the issues in the proceedings clearly. This was recognised at the Australian Institute of Judicial Administration’s discovery seminar in 2007, which reported

a widely held view from the profession that the courts need to exercise more control over the discovery process, and a parallel view from the courts that in order to do so, they need to have more information about the case that would be presented to the court.²⁷

6.33 The parties’ role in facilitating judicial case management of a proceeding, by identifying and clarifying the issues in dispute, is described in the Courts (Consolidation and Reform) Bill 2010 (Ireland) developed by the Law Reform Commission of Ireland.²⁸ Clauses 75 and 76 of the Bill require anyone involved in civil proceedings to comply with ‘case conduct principles’ and impose a corresponding obligation on the courts to engage in ‘judicial case management’. In particular, the Bill states that ‘issues between parties should, at as early a stage as possible, be identified, defined, narrowed (where possible) and prioritised or sequenced’.²⁹

6.34 Similarly, a note to the legal profession issued by the Supreme Court of Queensland about the Court’s Supervised Case List requires parties to ‘identify at an early stage in litigation the real issues in dispute’.³⁰ The note also encourages parties to

‘defer disclosure until the real issues in dispute are identified’.³¹

6.35 Pleadings are supposed to define the issues in each case and, in so doing, limit the ambit of discovery and the evidence that needs to be prepared for trial.³² However, as the ALRC commented in Managing Justice, pleadings in Federal Court proceedings are often too general in scope and inadequately particularised so that there is no narrowing of issues.³³ Pleadings couched in broad, vague or general terms, those which rely on numerous causes of action or defences or plead the case in a number of alternative ways, have the consequential effect of setting broad boundaries for the discovery of documents.

6.36 Amendments to pleadings, particularly when introduced late in civil proceedings, may be another cause of excessive discovery. In an article aptly named

‘Turning Mountains into Molehills—Improvements to Formal Dispute Resolution’, Andrew Stephenson explained that:

27 Australian Institute of Judicial Administration, AIJA Discovery Seminar (2007) <http://www.aija.org.au/

Discovery/Discovery%20Notes.pdf> at 8 November 2010.

28 Law Reform Commission of Ireland, Consolidation and Reform of the Courts Act (2010), LRC 97.

29 Courts (Consolidation and Reform) Bill 2010 (Ireland) cl 75.

30 Supreme Court of Queensland, Note to the Profession: Supervised Case List (2010).

31 Ibid.

32 S Colbran and others, Civil Procedure: Commentary and Materials (4th ed, 2009), 440.

33 Australian Law Reform Commission, Managing Justice: A Review of the Civil Justice System, Report 89 (2000), [7.166].

It simply does not pay to be too surgical in removing documents from consideration if the issues are likely to change. It is better to discover more (perhaps irrelevant documents) so when the case does change, discovery does not need to be redone.³⁴

6.37 Stephenson argues that, in most cases, significant improvements could be made in the discovery process if the real issues in dispute were more clearly defined beforehand:

it is important at the outset, before any preparation in relation to discovery is done, that the scope of the controversy be properly defined.³⁵

6.38 The following sections of this chapter outline a number of ways in which the crucial issues in dispute could be more clearly identified and defined, with a view to limiting the ambit of discovery by categories of documents in Federal Court proceedings, including:

• imposing an obligation on the parties to outline their case at an early directions hearing or case management conference;

• requiring parties to submit a written statement of the issues in dispute, in relation to which documents may be discovered; and

• requiring the parties, prior to discovery, to produce an outline of the evidence on which they intend to rely at trial.

6.39 The implementation of these procedures in Federal Court proceedings was proposed in the Consultation Paper.³⁶ Submissions responding to these proposals are outlined below in relation to each proposal, and conclusions on all of these proposals are drawn together in setting out the ALRC’s views on recommendations for such reform.

Initial directions hearing or case management conference

6.40 The Federal Court has introduced specific procedures for matters in its Fast Track List and with respect to tax matters. Both Practice Note CM 8 and Practice Note Tax 1 impose an obligation on the parties to such proceedings to outline the issues and facts that appear to be in dispute, at an initial directions hearing, called the ‘scheduling conference’.³⁷

6.41 A similar procedure, called the ‘case planning conference’, was introduced in the Supreme Court of British Columbia on 1 July 2010.³⁸ This mechanism was suggested by the Civil Justice Reform Working Group in 2006, which recommended that the parties should be required to ‘personally attend a case planning conference

34 A Stephenson, ‘Turning Mountains into Molehills: Improvements to Formal Dispute Resolution’ (Paper presented at Society of Construction Law Inaugural Conference, Perth, 2010), unpublished, 16.

35 Ibid.

36 Australian Law Reform Commission, Discovery in Federal Courts, Consultation Paper 2 (2010), Proposals 3–1, 3–2, 3–3.

37 Practice Note CM 8: Fast Track (Federal Court of Australia), pt 6; Practice Note Tax 1 Tax List (Federal Court of Australia), pt 5.

38 Supreme Court Civil Rules (British Columbia) pt 5.

6. Limited Discovery and Discovery Plans 145 before they actively engage the system, beyond initiating or responding to a claim’.³⁹ The Working Group identified key objectives of the case planning conference to include the narrowing of issues and directions for discovery.⁴⁰

6.42 The same objectives are sought to be achieved in the United States (US) through

‘Pre-Trial Conferences’ under r 16 of the Federal Rules of Civil Procedure 2009 (US).

The publication, The Elements of Case Management: A Pocket Guide for Judges (Pocket Guide) explains that, ‘the primary objective of the r 16 conference is for the judge and the lawyers to discern what the case is really about’.⁴¹

6.43 In her account of the Fast Track experience, the Hon Justice Michelle Gordon explained the profound effect that the early identification of issues has in relation to discovery:

[t]he users of the list have anecdotally reported a substantial improvement in relation to discovery with their corporate clients. There are certain questions that members of the legal profession are used to being asked—why do I need to search for those documents? How can those documents be relevant? In Fast Track, such questions are more easily answered because they are discussed during the scheduling conference and the obligations narrowed to only those issues really in dispute. In colloquial terms, the parties own the result because they are involved in it.⁴²

6.44 While this practice is not as explicitly required in the Federal Court outside of the Fast Track List and Tax List, any party seeking discovery in a Federal Court proceeding is expected to specify the issues in relation to which discovery is sought.

Practice Note CM 5 applies generally to applications for discovery in the Federal Court and states that parties are expected to answer the question: is discovery necessary at all, and, if so, for what purpose?⁴³

6.45 However, in practice, the parties or their legal representatives might not always be forthcoming with admissions as to which of the issues in dispute really matter most—at least not in the interlocutory stages. This was evident in Seven Network Ltd v News Ltd⁴⁴ where, according to Mallesons Stephen Jacques partner Roger Forbes, representing Telstra in this case, the parties did not want to give away ‘points’ too early:

39 British Columbia Justice Review Task Force, Civil Justice Reform Working Group, Effective and Affordable Civil Justice: Report of the Civil Justice Reform Working Group to the Justice Review Task Force (2006), rec 2.

40 Ibid, 10.

41 W Shwarzer and A Hirsch, The Elements of Case Management: A Pocket Guide for Judges (2nd ed, 2006), 5.

42 M Gordon, ‘The Fast Track Experience in Victoria: Changing and Evolving the Way in Which We Administer Justice’ (Paper presented at International Commercial Litigation and Dispute Resolution Conference, Sydney, 2010), 8.

43 Practice Note CM 5: Discovery (Federal Court of Australia), [1].

44 Seven Network Limited v News Limited [2007] FCA 1062.

They would say ‘we’re entitled to run all the points we want to and we don’t have to, at the outset, decide which are the best ones and which are the bad ones’.⁴⁵

6.46 In effect, the judge or registrar presiding at a directions hearing or scheduling conference may be required to interrogate the parties to determine the crucial issues in dispute. The need for active judicial participation in this context is noted in the Pocket Guide in the US:

Detecting the underlying issues in dispute sometimes requires vigorous questioning of the attorneys by the judge to get beyond the pleadings. Parties may raise assorted causes of action or defenses that create the impression of a complex lawsuit when, upon probing, it turns out that the entire case hinges on a straightforward factual or legal dispute—or no triable issue at all.⁴⁶

6.47 The approach which some judges in the United Kingdom (UK) have adopted to achieve a narrowing of issues was aptly summarised by the Mercantile Judge Simon Brown QC:

What I want to know, is this: what is this case about? Which of the ... issues really matter in getting to the heart of the dispute? Can we split the case up and limit disclosure to the subjects which matter, or which matter most?⁴⁷

Submissions and consultations

6.48 The Consultation Paper proposed that:

Following an application for a discovery order, an initial case management conference (called a ‘pre-discovery conference’) should be set down, at a time and place specified by the court, to define the core issues in dispute in relation to which documents might be discovered. At the pre-discovery conference, the parties should be required to:

(a) outline the facts and issues that appear to be in dispute;

(b) identify which of these issues are the most critical to the proceedings; and (c) identify the particular documents, or outline the specific categories of

documents, which a party seeks to discover and that are reasonably believed to exist in the possession, custody or power of another party.⁴⁸

45 Lawyers Weekly, Excess or Necessity? Lawyers Reflect on C7 Litigation (2010) <http://www.

lawyersweekly.com.au/blogs/top_stories/archive/2007/09/28/excess-or-necessity-lawyers-reflect-on-c7-litigation.aspx> at 21 July 2010.

46 W Shwarzer and A Hirsch, The Elements of Case Management: A Pocket Guide for Judges (2nd ed, 2006), 5.

47 Quoted in C Dale, ‘CaseMap Issue Linking in UK Civil Proceedings’ (Paper presented at Second International Workshop on Supporting Search and Sense Making for Electronically Stored Information in Discovery, London, 2008)), [2].

48 Australian Law Reform Commission, Discovery in Federal Courts, Consultation Paper 2 (2010), Proposal 3–1.

6. Limited Discovery and Discovery Plans 147 6.49 All the submissions that addressed this proposal expressed ‘in principle’ support for the goal of focusing the parties on the crucial issues in dispute to contain the discovery process, in appropriate cases.⁴⁹ For example, the Australian Government Solicitor agreed that ‘reform to ensure clearer definition of the real issues in dispute, prior to discovery, would have the greatest practical impact on limiting the ambit of discovery and reducing the overall burden of the discovery process’.⁵⁰

6.50 These submissions were also generally supportive of the use of case management conferences, as a means of facilitating stronger judicial control of the parties in considering the scope of discovery obligations.⁵¹ For example, the Law Council submitted that:

active judicial case management can be useful where there has been an application for discovery under order 15 of the Federal Court Rules. The benefit of case management is likely to be maximised where the parties are required to articulate in some detail and in some order of priority the issues and facts in dispute, as proposed through a pre-discovery conference. Introducing such a measure will allow the case managing judicial officer to adopt an active interventionist role in determining the scope for discovery.⁵²

6.51 The Commissioner of Taxation of the Commonwealth of Australia (Tax Commissioner) confirmed that the proposed pre-discovery conference resonated with

49 Association of Legal Support Managers (Qld), Submission DR 29, 11 February 2011; Queensland Law Society, Submission DR 28, 11 February 2011; Association of Legal Support Managers (Qld), Submission DR 29, 11 February 2011;Queensland Law Society, Submission DR 28, 11 February 2011;Australian Government Solicitor, Submission DR 27, 11 February 2011; Law Society of Western Australia, Submission DR 26, 11 February 2011; Law Council of Australia, Submission DR 25, 31 January 2011;

Australian Corporate Lawyers Association, Submission DR 24, 31 January 2011; Law Society of NSW, Submission DR 22, 28 January 2011; Contributors from the Large Law Firm Group, Submission DR 21, 25 January 2011; Public Interest Law Clearing House (Vic), Submission DR 20, 25 January 2011; NSW Young Lawyers, Submission DR 19, 21 January 2011; The Federation of Community Legal Centres (Vic), Submission DR 17, 20 January 2011; e.law Asia Pacific Pty Ltd, Submission DR 16, 20 January 2011; Public Interest Advocacy Centre, Submission DR 15, 20 January 2011; Australian Taxation Office, Submission DR 14, 20 January 2011; Department of Immigration and Citizenship, Submission DR 13, 20 January 2011; Australian Lawyers Alliance, Submission DR 11, 19 January 2011; Allens Arthur Robinson, Submission DR 10, 19 January 2011; M Legg, Submission DR 07, 17 January 2011; I Turnbull, Submission DR 05, 15 January 2011.

50 Australian Government Solicitor, Submission DR 27, 11 February 2011.

51 Association of Legal Support Managers (Qld), Submission DR 29, 11 February 2011; Queensland Law Society, Submission DR 28, 11 February 2011; Australian Government Solicitor, Submission DR 27, 11 February 2011; Law Society of Western Australia, Submission DR 26, 11 February 2011; Law Council of Australia, Submission DR 25, 31 January 2011; Australian Corporate Lawyers Association, Submission DR 24, 31 January 2011; Law Society of NSW, Submission DR 22, 28 January 2011; Contributors from the Large Law Firm Group, Submission DR 21, 25 January 2011; Public Interest Law Clearing House (Vic), Submission DR 20, 25 January 2011; NSW Young Lawyers, Submission DR 19, 21 January 2011;

The Federation of Community Legal Centres (Vic), Submission DR 17, 20 January 2011; e.law Asia Pacific Pty Ltd, Submission DR 16, 20 January 2011; Public Interest Advocacy Centre, Submission DR 15, 20 January 2011; Australian Taxation Office, Submission DR 14, 20 January 2011; Department of Immigration and Citizenship, Submission DR 13, 20 January 2011; Australian Lawyers Alliance, Submission DR 11, 19 January 2011; Allens Arthur Robinson, Submission DR 10, 19 January 2011;

M Legg, Submission DR 07, 17 January 2011; I Turnbull, Submission DR 05, 15 January 2011.

52 Law Council of Australia, Submission DR 25, 31 January 2011.

the current process under Practice Note Tax 1, and advised that it has been largely successful in taxation litigation.⁵³

6.52 However, a number of submissions suggested that there would need to be a degree of flexibility in this process—particularly in relation to the timing of when pre-discovery conferences were held—to maximise its effectiveness.⁵⁴ Some noted that parties and their lawyers would need adequate time to prepare for a pre-discovery conference;⁵⁵ and one suggested that no less than seven days would be needed.⁵⁶ Others argued that pre-discovery conferences should not be held too early in proceedings when the important issues in dispute have not sufficiently emerged.⁵⁷ For example, Allens Arthur Robinson submitted that:

Ideally, it would always be possible to identify the ‘core issues in dispute’ at an early stage of a proceeding. However, this is not always the case. In many proceedings issues evolve and change over time for legitimate reasons, including as a result of information gathered from the discovery process. It is critical, therefore, that any early identification of issues be seen as a dynamic process, and that it not be used to constrain one or the other party as the proceeding unfolds. Further, the ability of parties to resolve issues at the beginning of a proceeding should not be overestimated.

It should be possible to defer pre-discovery conferences if in all the circumstances it would be more productive to do so.⁵⁸

6.53 The Queensland Law Society also pointed out that a pre-discovery conference should not be held too late, when parties have already undertaken significant document collection.⁵⁹

6.54 Submissions from public interest advocates noted that increased funding to legal service providers—such as legal aid and community legal centres—would be required to ensure that they have sufficient resources to assist litigants in complying with the requirements of a pre-discovery conference.⁶⁰

6.55 At the same time, several submissions were opposed to the introduction of pre-discovery conferences in all cases before the Federal Court.⁶¹ Some expressed the view that, while pre-discovery conferences might be beneficial in large complex cases, the

53 Australian Taxation Office, Submission DR 14, 20 January 2011.

54 Queensland Law Society, Submission DR 28, 11 February 2011; Law Society of NSW, Submission DR 22, 28 January 2011; NSW Young Lawyers, Submission DR 19, 21 January 2011; Allens Arthur Robinson, Submission DR 10, 19 January 2011.

55 Law Society of NSW, Submission DR 22, 28 January 2011; NSW Young Lawyers, Submission DR 19, 21 January 2011.

56 NSW Young Lawyers, Submission DR 19, 21 January 2011.

57 Queensland Law Society, Submission DR 28, 11 February 2011; Law Society of NSW, Submission DR 22, 28 January 2011; Allens Arthur Robinson, Submission DR 10, 19 January 2011.

58 Allens Arthur Robinson, Submission DR 10, 19 January 2011.

59 Queensland Law Society, Submission DR 28, 11 February 2011.

60 Public Interest Law Clearing House (Vic), Submission DR 20, 25 January 2011; The Federation of Community Legal Centres (Vic), Submission DR 17, 20 January 2011; Public Interest Advocacy Centre, Submission DR 15, 20 January 2011.

61 Law Society of Western Australia, Submission DR 26, 11 February 2011; Law Council of Australia, Submission DR 25, 31 January 2011; The Federation of Community Legal Centres (Vic), Submission DR 17, 20 January 2011; Department of Immigration and Citizenship, Submission DR 13, 20 January 2011; M Legg, Submission DR 07, 17 January 2011.

6. Limited Discovery and Discovery Plans 149 cost of the conference may be greater than its benefits in smaller routine cases.⁶² Similarly, other submissions argued that a pre-discovery conference would be an unnecessary expense in cases where the parties agreed to the scope of discovery, but could be useful where there were disputes surrounding discovery.⁶³ The Federation of Community Legal Centres (Vic) submitted that individual litigants, particularly those who were unrepresented or impecunious, were at a disadvantage in litigation against larger corporate entities—such as may occur in public interest cases—and in these circumstances the requirement for a pre-discovery conference should be waived.⁶⁴ 6.56 A number of submissions also expressed the view that, for the purposes of containing discovery obligations, consideration of the important issues in dispute and the correspondingly relevant documents should also take into account practical concerns such as how those documents would be located, collected, reviewed or produced—especially when the documents are stored in an electronic format.⁶⁵ For example, a group of large law firms submitted that more detail about the discovery of electronic records would be beneficial at pre-discovery conferences:

In reality, parties are often making enquires in relation to the existence of the [electronically-stored information] and the process for retrieving and reviewing that information at an early stage of the proceedings in order to assess the costs involved in the discovery process. It would therefore seem sensible for the procedure for obtaining discovery orders to capture that information at an early stage and include a mechanism for having that information put before the Court at the time discovery orders are being considered.⁶⁶

Statement of issues in dispute

6.57 One way to identify the crucial issues in proceedings, in relation to which the scope of discovery may be limited, is to produce a separate document drawing out key points in dispute from the pleadings. This approach is adopted in the UK’s Commercial Court of the Queen’s Bench Division, where a ‘list of issues’ is filed in proceedings in addition to the pleadings.⁶⁷

6.58 The claimant, in consultation with other parties, will ordinarily be required to prepare a list of issues, with a section listing important issues that are not in dispute,

6.58 The claimant, in consultation with other parties, will ordinarily be required to prepare a list of issues, with a section listing important issues that are not in dispute,