Recent (2014) discovery amendments to the Civil Procedure Act 2010 (Vic)

The Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act 2014 (Vic) was given Royal Asset on 8 April 2014, and amends the Civil Procedure Act 2010 (Vic) (the "CPA"). The amendments mainly concern document management in the discovery process.

Click here for the link to the Explanatory Memorandum.

Click here for the link to the Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act 2014.

The amending legislation does the following to the CPA:

• It gives a court power to order parties to prepare a statement of issues, which may be used for many purposes including discovery (ss50 and 50A).
• It gives a court power to give directions limiting the obligation of discovery to a class or classes of documents or to documents relating to one or more specified facts or issues in dispute (s55(2)(c)).
• It gives a court power to order a party to pay a specified amount to another party in relation to the costs of discovery, including by way of payment in advance or as costs in the proceeding (s55(4) and (5)).
• It gives the court power, on consent of the parties, to give over all documents in that party's possession or control, on the basis that privilege is not waived (s55A).
• It gives the court power to order a party to provide an affidavit of document management, including details of the volume or location of discoverable documents, the way the documents are arranged or stored, or the party's document management processes more generally (s55B).
• It gives the court power to order oral examination of a deponent of an affidavit of document management or another appropriate person who is able to provide information about the matters in the affidavit (s55C).

The amendments relating to discovery are novel, and reflect the increasing need for proper document management and the kind of document management processes. The purpose of the amendments, expressed in the Explanatory Memorandum, is:

[T]o ensure that the courts, parties and legal practitioners are using appropriate tools to reduce the costs and delays associated with the discovery process, for example by more clearly defining the issues in dispute, considering document management issues prior to undertaking discovery, and limiting the scope of discovery requests.

The amendment that allows a party to hand over all of its documents and maintain privilege is a method used in large-scale litigation where it is considered too onerous for a party to wade through millions of documents to extract privileged and irrelevant documents. Of course, the risk of agreeing to this kind of order is that once a document is seen, it cannot be unseen. On the other hand, this sort of order may avoid the kind of extreme satellite litigation that occurred in the recent High Court of Australia decision of Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 303 ALR 199. There, a party inadvertently discovered and produced 13 documents because of errors made in a large and complex discovery process, and the opposing party refused to return them. The discovery dispute started in the New South Wales Supreme Court, then went to the Court of Appeal, and then on to the High Court.

This is the sort of balancing exercise the Court and the parties will need to engage in when considering this kind of order, in light of the overarching purpose to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute (CPA, s7).

Inadvertent production of confidential documents: ERA v Armstrong (2013) 303 ALR 199

At present the New South Wales, Queensland, South Australia and Western Australia Solicitors’ Rules require the return of documents to an opponent where there is inadvertent disclosure of confidential documents. The High Court recently commented that such a rule should not be necessary as “in the not too distant past it was understood that acting in this way obviates unnecessary and costly interlocutory applications” (Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 303 ALR 199 (“ERA v Armstrong”))

In ERA v Armstrong a firm of solicitors, Norton Rose, gave general discovery on behalf of a client. This included 13 documents that the client intended to claim privilege over, but which were inadvertently listed as non-privileged and produced for inspection. The error appeared to result from a mistake in the process of reviewing and identifying documents in large-scale discovery. On receipt of the documents Marque Lawyers sent a letter to Norton Rose stating that there was an inconsistency in the discovery as some communications were disclosed, but others were the subject of a claim for privilege. Norton Rose wrote to Marque Lawyers stating that the production was a mistake and requested the documents be returned. Marque Lawyers refused to return the documents and said that any privilege attaching to them had been waived.

Marque Lawyers was successful in the New South Wales Supreme Court and Court of Appeal. On appeal the High Court of Australia unanimously ordered the return of the documents to Norton Rose. The High Court noted that times have changed since the decision of Slade LJ in Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 at 1044. and case management concerns, including specific case management powers in the rules (in ERA v Armstrong, the CPA NSW ss 56, 57, 58 and 59) now give courts the power to order the return of the documents to further the “overriding purpose”, that is, the just, quick and cheap resolution of the real issues in the dispute or proceedings (ERA v Armstrong, [56], [57]). The High Court considered the pursuit of satellite interlocutory proceedings, in circumstances where the discovery dispute was a minor issue and offered very little advantage to the recipient, would not fulfill the overriding purpose and is the kind of conduct to be avoided (ERA v Armstrong, [59]). Also, a mistake had been made and this fact was not disputed. As such, there was no question of waiver sufficient to be agitated, and it was necessary that the mistake be corrected and the parties continue with their preparation for trial (ERA v Armstrong, [60] - [63]).

The evolution of discovery - Matthews v SPI Electricity Pty Ltd & Ors [2011] VSC 401

The matter of Matthews v SPI Electricity Pty Ltd & Ors [2011] VSC 401 was a hearing before Zammit AsJ in the Supreme Court of Victoria concerning discovery. I have referred to the case below because of the handy summary of the evolution of the procedures and tests for discovery. The matter itself is a class action against a power company SPI in respect of the Kilmore East-Kinglake bushfire on 7 February 2009.

The extract and a brief discussion is set out below.

Redaction principles reviewed in Octagon Inc v Hewitt & Anor (No 2) [2011] VSC 373

The matter of Octagon Inc v Hewitt & Anor (No 2) [2011] VSC 373 was a hearing before Dixon J in the Supreme Court of Victoria concerning adequacy of inspection of discovered documents that were redacted. It is a useful case because of the summary of the principles concerning redacted documents in discovery. For my readers' information, redaction is the act of blanking out part of a document because that part of the document is claimed to be irrelevant, privileged and/or confidential.

I have included a case summary and extract concerning redaction below.

Morris v Riverwild Management Pty Ltd & Ors [2009] VSC 654 - obtaining documents from a party

The matter of Morris v Riverwild Management Pty Ltd & Ors [2009] VSC 654 (Morris) is a 2009 decision in the Supreme Court of Victoria before Gardiner AsJ which concerns the proper form of obtaining documents from another party. I have included a case summary and discussion below.

1 January 2011 reforms, including the Civil Procedure Act 2010 (Vic)

As of 1 January 2011 the civil procedure rules and commercial laws in Victoria were substantially overhauled.

The recent legislative changes include the following:

• The Magistrates' Court General Civil Procedure Rules 2010 which substantially mirrors the current Victorian Supreme Court rules.
• The Civil Procedure Act 2010 (Vic) which codifies case management powers, alters the test for discovery and raises the threshold for summary dismissals in civil procedure.
• The Fair Trading Act 1999 (Vic) which implements the Australian Consumer Law (which is the new version of the Trade Practices Act 1974 (Cth)).