Discovery in the Australian Legal Proceedings

UNDERSTAND THE OBLIGATIONS AND PITFALLS OF THE AUSTRALIAN DISCOVERY PROCESS IN LITIGATION

In Australia, discovery is a key part of litigation where each party must disclose all relevant documents in their possession, power, or control. Failure to fully comply can result in forensic penalties and damage your case.

While discovery used to involve general document disclosure, modern litigation focuses on specific categories of documents requested after affidavits are exchanged. However, the obligation remains serious and continuous—even after the initial list is provided.

In this episode, Fiona discusses:

• what discovery means and how it works in Australian litigation
• why documents must be produced even if they’re unhelpful to your case
• how the discovery process has evolved since the ‘basement archive’ days
• why over-filtering documents is a strategic mistake
• the risks of failing to disclose: cross-examination and adverse inference

VIDEO SCRIPT

Today I met with clients and their German lawyer to look at what documents need to be produced as part of their obligations for discovery.

Discovery is the process by which parties to proceedings must hand over certain documents in their possession, power or control to their opponents.  This is done so that all of the documents that are relevant to the issues in dispute in the proceedings are available to everyone to use forensically as desired.

The documents that are to be discovered are set out in a List of Documents.  This is an itemised list where each document is numbered, dated and described.  Clients are required to produce all documents in their possession, power or control including documents that may be unhelpful for their case.

The requirement to produce documents in a party’s power and control extends beyond just what they have in their archives and may require them to obtain documents from third parties, such as their accountant or lawyer.  Documents a party once had but doesn’t have anymore, must also be included in the list together with an explanation as to who has them now and when the party last had them.

When I first started in practice, general discovery was a huge undertaking.  Every document of marginal relevance to the proceedings had to be produced.  It was a rite of passage for nearly every first-year solicitor to spend months locked away in a basement sorting through thousands of archived documents and listing them on the “List of Documents”.   Once that task was complete and the lists exchanged, the following months were then spent trawling through the other side’s documents looking for anything that might help your side’s case.  It was quite soul destroying.

These days the discovery process has been significantly curtailed.  It usually takes place after the affidavits have been prepared so that the issues in dispute are clearer and there is a requirement to request categories of documents rather than make a general order for discovery of all documents.    You are then only required to produce the documents which fall into those categories requested.  Mind you, categorising documents and excluding those documents which don’t fall into the categories can sometimes be a more difficult task than just including everything.

Nonetheless, the obligation on a party to produce all of the documents falling within a category is not to be underestimated.  Forensic penalties can be imposed on a party who has a document in their possession which should have been produced but wasn’t; especially if it is clear that it was deliberately withheld.  There are professional obligations on solicitors to ensure that their clients understand their full obligation to produce.  This is particularly pertinent with clients and their lawyers coming from a civil law jurisdiction where there is not the same obligation to hand over everything to your opponent unfiltered the way there is here.

One of the most difficult tasks of my job is to get clients to understand the extent of their obligations to hand over documents and to convince them to invest the time into digging everything out from their records and to make sure they haven’t overlooked anything.

Nothing should be held back – at least from your own solicitor.  It is far better to err on the side of giving more to your solicitor than to over filter and later realise that a document is relevant but wasn’t produced.  If there is a particularly unhelpful document, it is also far better to bury it amongst hundreds of marginally relevant documents in a long list than to draw attention to it by having to produce it on its own later.

Once an order for discovery has been made, there is as continuous obligation to produce.  This means that if any document comes to a party’s attention or into their possession after the List of Documents has been completed, it still has to be produced to your opponent.

Once the list of documents is complete, the party (or one of its officers) must swear on oath that the list of documents is complete and that everything has been produced.  It is remarkable how often a party is cross examined on the completeness of their affidavit verifying the list of documents and how often a failure to produce a marginally relevant document can be twisted into an inference that the party has something to hide.  I’m not sure this gets anywhere much forensically in most cases, but it makes for a very uncomfortable experience for the witness being cross examined and can put them off guard when it comes to being questioned on more significant topics.

The long and short of it is –

It is important to undertake the archaeological exercise of locating every relevant document and handing it over to your solicitor to determine whether or not it should be produced.  The filtering process should be undertaken at the solicitor end, not the client end.