ALRC Review of Discovery Laws

Since the ALRC received the terms of reference for this inquiry in May, I’ve been thinking about the scope of the inquiry and its concern with the costs of discovery. So the inclusion in the latest Law Society Journal of an article by Justice Ronald Sackville of ‘C7’ fame, and what he calls ‘mega-litigation’, is timely.

While the issue of the costs of discovery of documents can occur in all civil cases, it is certainly the ‘mega-litigation’ that provides the most glaring examples—like the C7 case (Seven Network Ltd v News Ltd [2007] FCA 1062) which involved 120 hearing days and generated a database of 85,653 documents comprising 589,392 pages! Such cases involve, remarked Sackville J, extraordinary demands ‘on the judicial system and on those unfortunate enough to be involved, whether as parties, legal representatives or judicial officers’. They also become ‘notorious’ because: they consume so much court time; the costs incurred are large; and the judgments are very long. And yet, ‘no one has been able to devise a clear and workable solution to the problems created by large and complex litigation’. (‘Mega-Lit: Tangible consequences flow from complex case management’ (2010) 48(5) Law Society Journal 47). Sackville J’s article provides an excellent prompt for the first questions on the blog.

How can we ensure that the costs of discovery in litigation are proportionate to the matters in dispute? Is effective case management the answer, as Sackville J suggests, and, if so, what makes it work effectively?

~ Rosalind Croucher, President Australian Law Reform Commission

The 2009 Report of the Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System, considered barriers to justice in relation to court-based dispute resolution and noted the high and often disproportionate cost of discovery.  The reference of this inquiry to the ALRC is an immediate result.

We will be undertaking formal consultations with key stakeholders throughout the inquiry, but we intend to use this blog to gather contributions and promote discussion around issues we are considering through the duration of the inquiry.

The Discovery Blog is a place where we will regularly add short posts describing issues we are curently thinking about. We encourage you to tell us what you think. We are also keen to hear about any relevant experiences you might have had.

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We look forward to hearing from you!