Discovery in the Federal Court of Australia

On 1 August 2011 the Federal Court of Australia (Federal Court) adopted the Federal Court Rules 2011 (Cth) (Rules) and its revised regime for discovery.  The Federal Court does not require parties to provide disclosure as a matter of course.  Instead, if a party wishes to receive documents from another party (or a third party), they must seek the Court’s permission.  This process is known as discovery.  The Rules are to be read in conjunction with the associated Federal Court practice notes, relevantly Central Practice Note: National Court Framework and Case Management (CPN-1) and Intellectual Property Practice Note (IP-1).  In this article, we consider the process of seeking discovery of documents in a matter before the Federal Court.

What is discovery?

Generally, discovery is an interlocutory step in a proceeding where parties disclose material relevant to the proceedings.  Discovery is dealt with by the Federal Court in Part 20 of the Rules.  The core difference with discovery in the Federal Court as opposed to other jurisdictions is that no party is to give, and so no party has a right to, discovery (in the sense of provision of a list of documents) without an order  (rule 20.12).  A party applying for discovery (Discovery Applicant) should not make a request unless it will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible (rule 20.11).

The Federal Court encourages the parties to co-operate to minimise the burden of discovery.  Informal exchange of documents may minimise the use of formal procedures (CPN-1 paragraph 10.3).  Prior to the Discovery Applicant approaching the Court with a request, the Court expects that the parties will have discussed discovery issues between them and, if possible, agreed on a protocol for discovery.  Such a protocol may involve consensual measures agreed to by the parties which may obviate the need for strict compliance with the Rules (such as avoiding the need for a list of documents).  The Court will consider the parties’ suggestions and may approve them if the Court considers them appropriate (CPN-1 paragraph 10.5).

In Trade Mark, Copyright and Design cases there will generally not be any need for discovery except where it directly relates to proof of copying, knowledge or intention by or on the part of the party alleged to have infringed or other specific topics directly relevant to an issue in the proceeding.  However, the Court is unlikely to make an order requiring extensive discovery unless satisfied that it is necessary for the just disposition of the proceeding (IP-1 Paragraph 7.1).

When an application for discovery is made by the Discovery Applicant, the application must state whether the party is seeking standard discovery or in the alternative state the proposed scope of the discovery.

Standard discovery

The requirements for standard discovery are set out in rule 20.14(1) and require that the party give discovery of documents:

• that are directly relevant to the issues raised by the pleadings or in the affidavits; and
• of which, after a reasonable search, the party is aware; and
• that are, or have been in the party’s control.

For documents to be “directly relevant” rule 20.14(2) requires that they must meet at least one of the following criteria:

• the documents are those on which the party intends to rely;
• the documents adversely affect the party’s own case;
• the documents support another party’s case;
• the documents adversely affect another party’s case.

Non-standard and more extensive discovery

Pursuant to rule 20.15(1), a party seeking an order for discovery (other than standard discovery) must identify the following:

• any criteria mentioned in the standard discovery that should not apply;
• any other criteria that should apply;
• whether the party seeks the use of categories of documents in the list of documents;
• whether discovery should be given in an electronic format;
• whether discovery should be given in accordance with a discovery plan.

Pursuant to rule 20.15(2)-(3), an application by a party must be accompanied by the following:

• if categories of documents are sought—a list of the proposed categories;
• if discovery is sought by an electronic format—the proposed format;
• if a discovery plan is sought to be used—a draft of the discovery plan;
• if extensive discovery is required – an affidavit stating why the order should be made.

Giving discovery

A party gives discovery by serving on all other parties to the proceedings a list of documents.  The list must specify any category of documents for which a search was not made and state why a search was not made (rule 20.16).  The list of documents is to be in accordance with Federal Court Form 38.

The list must describe:

• each category of documents in the party’s control sufficiently to identify the category but not necessarily the particular document; and
• each document that has been, but is no longer in the party’s control, a statement of when the document was last in the party’s control and what became of it; and
• each document in the party’s control for which privilege from production is claimed and the grounds of the privilege.

Takeaways

The parties to a proceeding should use all efforts to perform an informal exchange of documents.  Applying to the court for an order of discovery should only occur when the parties have exhausted trying to co-operate.  Any discovery being sought should occur in a way which is as inexpensive and efficient as possible.

Links and further references

Legislation

Federal Court Rules 2011 (Cth)

Federal Court Practice Notes

Central Practice Note: National Court Framework and Case Management (CPN-1)

Intellectual Property Practice Note (IP-1)

Further information about litigation and disputes

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Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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