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In an attempt to cut down the costs of civil litigation, Victoria’s Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Bill 2014 (the Act) has recently been passed to amend the Civil Procedure Act 2010 (Vic) in relation to discovery and disclosure obligations.

The main idea behind the Act is to address some of the cost and delay issues in civil litigation by giving the judiciary more power and discretion in managing discovery issues.  In particular, the Act seems to be targeting the more complex and lengthy cases where the discovery obligation of each party is quite onerous.

Statement of Issues

The Act enables a court to order that the parties draft and file a statement of issues in a proceeding to hopefully 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.  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 normal broad discovery obligation.  The Act 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.

'If you want it, you pay for it'

The Act also gives a court discretion to order that the 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.

Just give us everything

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 e.g. because of privilege – provided all parties consent.  Privilege would be maintained and the right to privilege supervised by the relevant court.

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 discovery in complex commercial litigation.

May 2014

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