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.