In an attempt to cut down the costs of civil litigation, Victoria's Justice Leg-islation Amendment (Discovery, Dis-closure and Other Matters) Bill 2014 (the Act) has recently been passed to amend the Civil Procedure Act 2010 (Vic) in relation to discovery and dis-closure obligations.

The main idea behind the Act is to ad-dress some of the cost and delay is-sues in civil litigation by giving the ju-diciary more power and discretion in managing discovery issues. In partic-ular, the Act seems to be targeting the more complex and lengthy cases where the discovery obligation of each party is quite onerous.


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 dis-pute. 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 state-ments of claim, defences and coun-terclaims can be very lengthy and vo-luminous, and rightly so. A less for-mal statement of issues would also limit the scope of the discovery pro-cess and focus the attention of the parties in their requests for discovery - as opposed to imposing on each party the normal broad discovery ob-ligation. The Act gives a court the power to limit the obligation of dis-covery 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.


The Act also gives a court discretion to order that the party requesting dis-covery pay part, or all, of the costs of providing the requested docu-ments. This could include a direction that a specified amount be aid in ad-vance. This power seems aimed at re-ducing costly discovery by allowing a court to employ this power when a party requests discovery of docu-ments where their merit and/or rele-vancy 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 in-tended use as articulated by the At-torney-General.


The Act allows a court to order that all relevant documents in a party's pos-session or control be discovered even if those documents would not ordi-narily be discoverable e.g. because of privilege - provided all parties con-sent. 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 facili-tating more efficient case manage-ment in relation to the discovery pro-cess, this Act aims to reduce the delay and cost of discovery in complex commercial litigation.

Important Disclaimer
This publication is general in nature and is not intended to be, nor should be, considered as legal advice.

For legal advice please contact Hope Earle Lawyers on +61 3 9600 3330.