Are you a party to litigation and want to understand more about your discovery obligations?  Maybe you are a self-represented litigant.  Alternatively, are you a member of the profession and need a quick refresher on the discovery process?  If your answer to any of those questions is yes, then this is the article for you.

Discovery can be onerous and expensive.  That said, in Victoria, it is an integral part of litigation, designed to ensure procedural fairness to the parties to the dispute.

In short, discovery is a process whereby a party to a proceeding discloses and provides to the other parties to the proceeding documents relevant to the issues in dispute.

In this guide, we summarise the key components of the discovery process in Victoria.[1]  If you need any further, more detailed, advice about discovery, please feel free to contact one of our team members.

What legislation or rules apply?

Part 4.3 of the Civil Procedure Act 2010 (Vic) (CPA) and Order 29 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic)[2] (Rules) govern discovery in Victoria.

Please bear in mind that the obligation of a party to make discovery differs depending on the jurisdiction.  For instance, in New South Wales discovery is discretionary and the discovery that the Court can order is more confined than general discovery.[3] Also, in the Federal Court of Australia a party must not give discovery unless the Court has made an order.[4] 

Always make sure that you are looking at the applicable legislation or rules before embarking on discovery; you may not need to do make discovery in certain circumstances.

When does discovery take place?

In Victoria, discovery usually takes place during a proceeding, typically after pleadings have closed.  The parties to the proceeding generally agree[5] upon the relevant timetabling orders for interlocutory steps, which generally includes a deadline for discovery.

Discovery is not restricted to a proceeding that is on foot.  Discovery-like orders can be sought to obtain information in order to:

  • identify a defendant;[6] and
  • determine a cause of action against a prospective defendant,[7]

both before substantive proceedings are on foot.

What is the scope of discovery?

As a general rule, documents that are relevant are discoverable.[8]  A document is relevant if it concerns or otherwise relates to a matter in dispute in the proceeding.  The Rules assist with defining what is relevant by contemplating that a party must make discovery of any of the following documents which are in the party’s possession:[9]

  • documents on which the party relies;
  • documents that adversely affect the party’s own case;
  • documents that adversely affect another party’s case; and
  • document that support another party’s case.

The scope of discovery can also be altered by the Court: the Court is empowered to order that discovery not be given, that it be limited[10] or that a party’s discovery obligation be expanded.[11]

What is a document?

A document includes, in addition to a document in writing, the following:[12]

  • any book, map or drawing;
  • any photograph;
  • any label;
  • any disc, tape, sound track;
  • any film (including microfilm) negative or tape; and
  • anything on any words, figures, letters or symbols which are capable of carrying a definitive meaning are marked.

What is meant by possession, custody or power?

A party is required to discover all documents that are in its:[13]

 

  • Possession”, being documents that the party has the right to the possession of.[14] Possession is a present or past right rather than a future right – it is not a right of mere access.[15]  For example, A has an email in her work Outlook account that is relevant to a dispute involving A’s employer, ‘B’.  The email is discoverable in the proceeding by B as it is in B’s possession.
  • Custody”, being documents that a party is actually or physically holding regardless of whether it has a right to possess the document.[16] For example, C is an employee and has a box of his employer’s documents in his office, which documents are relevant to a dispute to which C is a party.  C has custody of the documents and is required to discover them even though his employer may hold the right to possess the documents.[17]
  • Power”, being documents over which a party has a legally enforceable right to obtain possession, without the need to seek the consent of a third party. [18] For instance, if D Pty Ltd’s original, signed constitution is held by its accountant at the accountant’s office, then that document is within D Pty Ltd’s power and is discoverable.  On the other hand, a document in the possession of a subsidiary company, is not, in the absence of a specific right of possession, in the power of the subsidiary’s parent company. 

What is a reasonable search?

A ‘reasonable search’ for discovery depends on:[19]

  • the nature and complexity of the proceeding;
  • the number of documents involved;
  • the ease and cost of retrieving a document;
  • the significant of any document to be bound; and
  • any other relevant matter.

Ultimately, what constitutes a reasonable search is largely dependent on the facts of the case.  If a party does not, in making a reasonable search, search for a category or class of document, the party must include in the affidavit of documents a statement:

  • of the category or class of documents not searched for; and
  • the reason why.

How does a party give discovery?

A party gives discovery by making an affidavit of documents, which affidavit must:[20]

  • identify the documents which are or have been in the party’s possession;
  • list the documents in convenient order and describe each document;
  • distinguish documents which are in the possession of the party from those that have been but are no longer in that party’s possession; and
  • state sufficiently the grounds of the privilege over any privileged documents.

A party who receives an affidavit of documents can request production of copies of the documents referred to in the affidavit of documents.[21]

What if a party doesn’t adhere to its discovery obligations?

If a party fails to properly make discovery, in addition to seeking orders for discovery from the Court, the party entitled to the discovery may serve a default notice.  If the defaulting party does not comply with that notice within seven days, then the Court may order –

  • if the party required to make discovery is the plaintiff, that the proceeding be dismissed;
  • if the party required to make discovery is the defendant, that the defendant’s defence, if any, be struck out.

What if more documents come to light?

A party who comes into the possession of relevant documents after previously making discovery in a proceeding is required to make a further affidavit of discovery with the documents that have recently come into its possession.[22]

What next?

The discovery process is of fundamental importance.[23]  It is important that a party adheres to their obligations, because there are serious consequences if the party fails to do so.

If you need help with attending to discovery or otherwise understanding your obligations, please contact our office.  We would be more than happy to assist.  Please also keep an eye out for the next chapter in our discovery series.


 

[1] This guide is general in nature, is not intended to be exhaustive or tailored to any particular case and is not intended to be legal advice.
[2] The County Court of Victoria and the Magistrates’ Court of Victoria have similar rules.
[3] Uniform Civil Procedure Rules 2005 (NSW) r 21.2 which provides that the Court may order discovery of ‘documents within a class or classes specified in the order’ or ‘one or more samples … of documents within such a class’.  Moreover, the class of documents specified in any discovery order ‘must not be specified in more general terms than the [C]ourt considers to be justified in the circumstances’: r 21.2(2).
[4] Federal Court Rules 2011 (Cth) r 20.12.
[5] And submit to the applicable Court for approval.
[6] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 32.04 (‘Rules’).
[7] Ibid r 32.05.
[8] It is important to note that a party is not required to discover a document that the party reasonably believes is already in the possession of the party to which discovery is to be given: see Rules (n 6) 29.01.1(4)(a).
[9] Ibid r 29.01.1(3).  ‘Possession’ is defined to include a document in a party’s possession, custody or power: see Rules (n 6) 29.01(2).
[10] Ibid r 29.05.
[11] Ibid r 29.05.2.
[12] Interpretation of Legislation Act 1984 (Vic) s 38.
[13] Rules (n 6) r 29.01(2); B v B [1978] 3 WLR 624.
[14] See B v B [1978] 3 WLR 624.
[15] See Psadlidis v Norwich Union Life Australia Ltd (2009) 29 VR 123.
[16] Ibid.
[17] Ibid.
[18] Roux v Australian Broadcasting Commission [1992] 2 VR 577.
[19] Rules (n 6) r 29.01.1(5).
[20] Ibid r 29.04.
[21] Ibid r 29.09.
[22] Ibid r 29.15.
[23] Section 26 of the Civil Procedure Act 2010 (Vic) provides that, as part of a party’s overarching obligations in legal proceedings in Victoria, a party is required to disclose the existence of documents critical to the resolution of the dispute.