New law to simplify document disclosure in civil litigation

The Victorian Coalition Government yesterday brought legislation into Parliament to give courts greater powers to simplify and reduce the costs of discovery and disclosure of documents for parties in civil litigation.

The Australian Law Reform Commission recently reported that discovery is often the single largest cost in commercial litigation and costs and delays associated with protracted discovery processes can amount to a huge public cost.

Attorney-General Robert Clark said the Bill grants the courts new powers to manage discovery and disclosure processes to ensure those processes are undertaken efficiently, effectively and fairly, particularly in large scale commercial disputes where there can be many thousands of documents discovered.

The Bill allows the court:
•to order that parties consult to prepare a statement of the key issues in dispute in the proceeding, which will enable parties to identify the key issues and define the scope of their discovery at an early stage in proceedings;
•to require a party requesting discovery to bear some or all of the costs of discovery, encouraging parties to avoid unjustified or unreasonable costs being incurred;
•if the parties consent, to order a party to provide to another party all documents within their possession or control that are related to the issues in the proceedings, subject to safeguards to ensure that a party is not prejudiced. This will mean that the requesting party rather than the providing party is responsible for the time and cost of reviewing the documents, again encouraging parties to minimise the cost of discovery;
•to order or direct a party to provide an affidavit setting out the volume, manner of arrangement, storage, type and/or location of discoverable documents, or information about a party’s document management processes; and
•to order that a deponent of such an affidavit, or another suitable person, can be orally examined in relation to the matters dealt with in the affidavit. The order for an affidavit and an examination on it will allow parties to more easily identify documents, particularly in the context of complex document storage and other IT systems, and minimise disputes about discovery.

“The Bill is further evidence of the Coalition Government’s commitment to ensuring that Victoria has a first class civil justice system that provides fair and efficient justice,” Mr Clark said.

“The Coalition Government recognises that the focus in litigation should be on resolving the real issues in dispute and not on the potential cost and complexity associated with the procedures involved in having a dispute heard at court.

“Commercial parties and parties involved in complex matters will particularly benefit from the greater range of case management orders available, which will make it easier to find documents relevant to their case at the lowest cost.

“This Bill follows other Coalition Government reforms that improve the efficiency of civil procedures in Victorian courts, as well as the Government’s support for the establishment of a commercial arbitration and mediation centre.”

Mr Clark thanked all members of the Civil Procedure Advisory Group who had contributed to the development of the reforms.