Seamus E. Byrne's - In Pursuit of Relevance

Introduction

Chief Justice Black issued the Federal Court of Australia's new Practice Note 30 on 24 April 2009 ("Practice Note"). Following a successful trial in the Victorian District Registry, the Practice Note implements "Fast Track Directions" as part of a framework designed to finalise a proceeding within 5 to 8 months of commencement (unless it settles beforehand!).

Such reduced timeframes are facilitated by a number of reforms, including restricting the availability of discovery, and where discovery is ordered, limiting the scope of a party's discovery obligations.

Relationship between Practice Notes 17 and 30

Practice Note 17 provides a flexible framework and guidance in relation to the "use of technology in the management of discovery and the conduct of litigation".

Where a proceeding is subject to Fast Track Directions under the Practice Note (PN 30, Part 2), the Court's recently revised Practice Note 17 remains significant, particularly to assist parties to reach appropriate agreements in relation to the discovery of electronic documents at the pre-discovery stage.

This document is intended to be read with the Guide to the Federal Court of Australia's revised Practice Note 17.

Pre-Discovery

Following the commencement of a legal proceeding, the parties will typically exchange pleadings. Pleadings are written statements that serve to outline the facts and issues in dispute for each party. Pleadings assist to focus the dispute, and consequently, refine the scope of any discovery.

Under the Practice Note, the standard pleading process does not apply (PN 30, 4.1). In contrast, specific "Fast Track" statements, responses, cross-claims and replies are used to limit any written statements to a summary only.

Discovery

Cooperation

The Practice Note re-emphasises the Court's expectation of cooperation between parties:

5.1 The Court expects the parties and their representatives to cooperate with, and assist, the Court in ensuring the proceeding is conducted in accordance with the Fast Track Directions so that the real issues in dispute are identified as early as possible and are dealt with in the most efficient way possible.

The Practice Note also provides that parties must "meet and confer" in an attempt to resolve any dispute in relation to discovery before making an application to the Court for resolution (PN 30, 5.2). Accordingly, this requirement increases the importance of preparation prior to any Pre-Discovery Conference and subsequent formulation of a Discovery Plan.

Scope of Discovery is Limited

7.1 Except where expanded or limited by the presiding judge, discovery if ordered in proceedings to which the Fast Track Directions apply will be confined to documents in the following categories:
(a) documents on which a party intends to rely; and
(b) documents that have significant probative value adverse to a party's case.

Contrast: Order 15 rule 2(3) of the Federal Court Rules

(3) Without limiting rule 3 or 7, the documents required to be disclosed are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given:
(a) documents on which the party relies; and
(b) documents that adversely affect the party's own case; and
(c) documents that adversely affect another party's case; and
(d) documents that support another party's case.

Reasonable Search is a Good Faith, Proportionate Search

7.2 Discovery must be provided in accordance with the following:
(a) Parties must provide discovery of any document within the limited discovery categories mentioned in paragraph 7.1 that a party knows of at the time of the Scheduling Conference, or that the party becomes aware of at a later point in the pre-trial or trial process, or that the party discovers in the course of a good-faith proportionate search of the party's documents and records.
(b) A 'good-faith proportionate search' is a search undertaken by a party in which the party makes a good-faith effort to locate discoverable documents, while bearing in mind that the cost of the search should not be excessive having regard to the nature and complexity of issues raised by the case, including the type of relief sought and the quantum of the claim.

(c) A party giving discovery must, if requested to do so by another party, provide a brief description of the steps the party has taken to conduct a good faith proportionate search to locate discoverable documents.

Contrast: Order 15 rule 2(5-6) of the Federal Court Rules

(5) For subrule (3), in making a reasonable search, a party may take into account:
(a) the nature and complexity of the proceedings; and
(b) the number of documents involved; and
(c) the ease and cost of retrieving a document; and
(d) the significance of any document likely to be found; and
(e) any other relevant matter.

(6) If the party does not search for a category or class of document, the party must include in the list of documents a statement of the category or class of document not searched for and the reason why.

Additional Discovery

7.3 A party may require additional discovery in relation to discrete issues, such as the quantification of damages. In that event the judge may make a separate order for that purpose. The order may include a requirement that discovery be given by inspection alone.