What is standard discovery in Federal Court?

In the Federal Court of Australia, a party may be ordered to provide “standard discovery”. Orders of this nature imposes a broad obligation on a litigant to disclose documents which are relevant to issues raised in the dispute.

The law in relation to standard discovery

Rule 20.14 of the Federal Court Rules 2011 (Cth) provides for standard discovery. In short, there are three (3) primary requirements on a litigant who is ordered to provide standard discovery. By rule 20.14(1) they are namely that a litigant provides documents:

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

This rule is designed to ensure that only relevant, reasonably obtainable documents which a litigant has a right to access are the subject of an order for standard discovery. The end goal is to ensure the expeditious resolution of any disputes between litigants by ‘narrowing the scope of discovery’.^[1]

Relevance

The first requirement, that a document is relevant to the issues in proceedings, is further explained by rule 20.14(2) which provides that, to be directly relevant to the issues, a document must:

be one which a party intends to rely;
adversely affect the party’s own case;
support another party’s case; or
adversely affect another party’s case.

Satisfaction of any one of the above four criteria will establish a document as ‘directly relevant’.

Noting that the phrase ‘directly relevant’ has not been thoroughly considered by the court, the case of Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2011] FCA 1396 the Federal Court held at [34]:

“… whether documents are “directly relevant” to issues raised by pleadings is invariably a question of fact in the circumstances of a particular case. Nonetheless, the phrase has been considered in a number of decisions … “directly relevant” means something which tends to prove or disprove the allegation in issue. In Re New World Alliance Pty Ltd (rec & mrg apptd); Sycotex Pty Limited v Lutz Clemens Wolfgang Baseler (1993) 47 FCR 90 at [49] Sheppard J referred to documents “thought to be directly relevant to the issues in question and probative of the applicant’s case”.

Notably, a document which is intended to be relied upon as circumstantial evidence can be ‘directly relevant’. In the case of Southern Equities Corporation Ltd (In Liquidation) v Arthur Andersen & Co (No 5) [2001] SASC 335 the Court held in relation to the meaning of the phrase ‘directly relevant’:

“…it cannot mean, if the document is not itself proof of a fact in issue but is merely a piece of circumstantial evidence tending, along with other evidence, to prove the fact in issue, that it is not discoverable. Many a case is provable and in fact proved by circumstantial evidence, including documents.”^[2]

The above rules and cases show that the Courts will very strictly require that any document relating to an issue, whether it strengthens or weakens a litigant’s case, or which is otherwise intended to be relied upon, must be disclosed. This is true even for circumstantial evidence, which could significantly expand the scope of documents which must be produced if standard discovery is ordered.

Reasonably locatable

The second requirement, that a document be capable of obtainment after a reasonable search, is by rule 20.14(3) to be understood in the context of:

the nature and complexity of the proceeding;
the number of documents involved;
the ease and cost of retrieving a document;
the significance of any document likely to be found; and
any other relevant matter.

The above criteria are obvious in their scope and have not been the subject of substantial judicial consideration. In order to better understand these requirements, it should be noted that the overarching purpose of civil practice in the Federal Court, to which parties are bound,^[3] which is to facilitate the just resolution of disputes:

in accordance with law; and
as quickly, inexpensively and efficiently as possible.^[4]

Therefore, it might be the case that any requirement for standard discovery would not impose upon a litigant to undertake an extensive search, costing substantial amounts of money and consuming a lengthy period of time. With that in mind, if the interests of justice require a document to be disclosed which is difficult to obtain, the Federal Court will likely not hesitate to order its production.

Takeaways about standard discovery

Standard discovery in the Federal Court requires litigants to disclose relevant, readily accessible documents which they control. This will be required regardless of whether these documents help or hinder a litigant’s case but will likely, in most cases, be limited to documents which are not abnormally difficult to obtain.

Links and further references

Legislation

Federal Court of Australia Act 1976 (Cth)

Federal Court Rules 2011 (Cth)

Case law

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2011] FCA 1396

Dennis v Chambers Investments Planners Pty Ltd [2012] FCA 63

Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd [2002] SASC 374

Southern Equities Corporation Ltd (In Liquidation) v Arthur Andersen & Co (No 5) [2001] SASC 335

Further information about standard discovery

If you need advice on standard discovery in the Federal Court, contact us for a confidential and obligation-free discussion:

Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
T: +61 7 3221 0013 (preferred)
M: +61 419 726 535
E: mburrows@dundaslawyers.com.au

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.

[1] Dennis v Chambers Investments Planners Pty Ltd [2012] FCA 63.

[3] Federal Court of Australia Act 1976 (Cth) s 37N.

[4] Ibid s 37M.