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6.234 The Association of Legal Support Managers (Qld) proposed that reform should require corporate litigants to adopt appropriate record management systems.²⁹³ The Association argued that the ‘root cause’ of problems with discovery is the disorganised manner in which many litigants keep their records:

Perhaps the single greatest challenge in discovery is how to effectively and efficiently deal with the ever increasing volume of records being retained by organisations (noting that, due to email and social networking, many of the records retained may not relate directly to the business at all) ... Compounding the difficulties faced when dealing with these increasing number of records is the fact that many organisations do

291 Federal Court of Australia Act 1976 (Cth) s 37M.

292 Recs 6–6 to 6–8.

293 Association of Legal Support Managers (Qld), Submission DR 29, 11 February 2011.

not have in place systems for managing records. Accordingly, when a lawyer wishes to undertake a review of records for the purpose of case preparation or discovery, the lawyer often encounters large numbers of disorganised records and is tasked with having to create a system for managing those records before any consideration can be given to commencing a review.²⁹⁴

6.235 Australian Lawyers Alliance also observed that:

The reality is that most businesses organise their information, electronic or otherwise, in a way that is suitable to them and there is no thought of litigation at the time this is carried out. It is one of the main reasons why the preservation, collection and discovery of documentation is such an onerous process.²⁹⁵

6.236 It noted that ‘it may not be possible for a party (specifically the respondent) to advise how it can produce documents if they are scattered over a number of personal computers without any formal system in place to retrieve them, other than simply going through what they have retained’.²⁹⁶

ALRC’s views

6.237 Effective information management is an essential pre-cursor to an efficient discovery process.²⁹⁷ The ALRC supports initiatives aimed at encouraging litigants to adopt functional document management systems, given the potential for consequential benefits in the discovery process.

6.238 However, the ALRC considers that reform imposing requirements on prospective litigants to manage their records effectively, is beyond the scope of the Terms of Reference for this Inquiry.²⁹⁸ Such reform would have an impact on corporations and individuals outside the context of litigation in federal courts, by regulating the conduct of everyday business in relation to information management.

Other federal courts High Court of Australia

6.239 The High Court will determine what procedure is to be adopted for discovery of documents in any proceeding and may give directions in those cases.²⁹⁹ In the Consultation Paper, the ALRC asked what issues, if any, have arisen in the procedures adopted by the High Court for the discovery of documents in proceedings.³⁰⁰

294 Ibid.

295 Australian Lawyers Alliance, Submission DR 11, 19 January 2011.

296 Ibid.

297 EDRM: The Electronic Discovery Reference Model (2010) <http://www.edrm.net> at 25 October 2010.

298 See Ch 1.

299 High Court Rules 2004 (Cth) r 6.01.

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

6. Limited Discovery and Discovery Plans 193 6.240 The Law Council submitted that it was:

unaware of any recent instances of discovery in civil proceedings in the High Court, and is therefore unaware of any issues that may have arisen in the High Court’s procedures.³⁰¹

6.241 The ALRC makes no recommendations for reform concerning the procedures for discovery adopted in High Court proceedings. As discussed in Chapter 5, the need for discovery of documents is unlikely to arise in the High Court and, as such, there is no need for reform.

Family Court of Australia

6.242 As outlined in Chapter 4, the Family Law Rules 2004 (Cth) impose an obligation of full and frank disclosure on parties to Family Court proceedings and provide specific means by which that obligation must be fulfilled. In the Consultation Paper, the ALRC asked what issues, if any, arise in the procedures prescribed for disclosure of documents in proceedings before the Family Court.³⁰²

6.243 The Law Council submitted that disclosure procedures in the Family Court are generally working well, and the procedures prescribed in the Family Law Rules are operating effectively to reinforce a culture of full and frank disclosure.³⁰³

6.244 The Family Court submitted that there are a number of theories as to why the comprehensive obligation to make full and frank disclosure works well in the Family Court, but one probable reason is the application of the less adversarial process.³⁰⁴ The Court explained that it has taken an activist approach to case management in child-related matters, which has enhanced the operation of disclosure obligations in those proceedings:

Over the last decade the Family Court of Australia developed, piloted and implemented a less adversarial approach to hearing children’s cases, known as the Less Adversarial Trial (LAT). LAT is a judge-directed and controlled process; one that has been described as having ‘significant implications, not only for the conduct of family law litigation but also for the conduct of litigation as a whole’. Crucial to the model is the early identification of issues by the trial judge and the ability of the trial judge to confine the evidence to such issues within a procedure whereby the best interests of the children, rather than parental grievances, are the focus.³⁰⁵

6.245 The features of LAT were given legislative force through the enactment of div 12A of the Family Law Act 1975 (Cth),³⁰⁶ which contains principles for the conduct of child-related proceedings. The second principle, found in s 69ZN(4) of the Act, is that ‘the Court is to actively direct, control and manage the conduct of the

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

302 Australian Law Reform Commission, Discovery in Federal Courts, Consultation Paper 2 (2010), Question 3–11.

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

304 Family Court of Australia, Submission DR 23, 31 January 2011.

305 Ibid.

306 Introduced in the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).

proceedings’.³⁰⁷ The Family Court noted that the principal benefit of this approach was that:

the actual issues in dispute between parties can be properly identified and narrowed.

As a consequence, the discovery process in children’s proceedings may also be limited in scope as the parties are able to focus on the discrete issues that require judicial determination.³⁰⁸

6.246 The ALRC considers that the comprehensive provisions of the Family Law Act and Family Law Rules, setting out the procedures through which full and frank disclosure is given, are operating successfully and do not require any reform. In the ALRC’s view, the procedural steps set out in the Act and the Rules in relation to the duty of full and frank disclosure promote the principle of accessibility in the Family Court. Initiatives that create obligations should include mechanisms to allow people to understand and carry out those obligations.³⁰⁹ By setting out the means by which parties must fulfil their duty to give full and frank disclosure, the Act and the Rules provide practical guidance to assist parties in discharging their duties in relation to disclosure, and promote certainty of expectations of the parties.

Federal Magistrates Court of Australia

6.247 As noted in Chapter 4, the Federal Magistrates Court was established to deal with smaller and simpler cases than those conducted in the Federal Court or Family Court.³¹⁰ As such, procedures for disclosure or discovery of documents in the Federal Magistrates Court reflect streamlined versions of the mechanisms utilised in Federal Court and Family Court proceedings. The Consultation Paper asked what issues, if any, arise in the procedures prescribed for disclosure of documents in proceedings before the Federal Magistrates Court.³¹¹

6.248 The Law Council suggested that, in the context of family law matters, disclosure procedures adopted in the Federal Magistrates Court are inadequate by comparison to those prescribed in the Family Court.³¹² For example:

The party who is ordered to disclose documents must file an Affidavit of Documents (Rule 14.03). The provision of a list of documents, followed by inspection, is not sufficient. It is considered that this is an unnecessarily formal process compared to the processes of the Family Law Rules 2004.³¹³

307 Family Law Act 1975 (Cth) s 69ZN(4).

308 Family Court of Australia, Submission DR 23, 31 January 2011. Emphasis in the original.

309 Australian Government Attorney-General’s Department, Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System (2009), 62.

310 Federal Magistrates Act 1999 (Cth), Explanatory Memorandum.

311 Australian Law Reform Commission, Discovery in Federal Courts, Consultation Paper 2 (2010), Question 3–12.

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

313 Ibid.

6. Limited Discovery and Discovery Plans 195 6.249 The submission also noted that there are no mandatory pre-action procedures such as those prescribed in the Family Law Rules, which may facilitate full and frank disclosure of documents.³¹⁴

6.250 On the other hand, in many cases before the Federal Magistrates Court, the parties will make appropriate, informal arrangements for the disclosure of documents.³¹⁵ This may be possible due in part to the nature of the smaller, less complex matters that the Court is intended to handle in its jurisdiction.

6.251 There were no issues raised in the course of this Inquiry in relation to discovery of documents in general civil law matters—that is, anything other than family law matters—in the Federal Magistrates Court.

6.252 The ALRC considers that the disclosure procedures adopted in the Federal Magistrates Court’s family law jurisdiction are consistent with the principle of appropriateness—in that the justice system should be structured to create incentives to encourage people to resolve disputes as the most appropriate level.³¹⁶ In the ALRC’s view, disclosure procedures in the Federal Magistrates Court are appropriate for the simple and straightforward cases that the Court is intended to handle.

6.253 The ALRC does not support reform to adopt in the Federal Magistrates Court the comprehensive procedures prescribed in the Family Court in relation to the duty of full and frank disclosure. Such reform would compromise current incentives for parties to commence proceedings in the appropriate jurisdiction according to the complexity and needs of each case.

314 Ibid.

315 Federal Magistrates Court, Consultation, 13 August 2010.

316 Australian Government Attorney-General’s Department, Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System (2009), 62.