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Discovery is a required process in civil court proceedings. During discovery, you must provide the other side with any documents that are relevant to the case. It is important that all relevant documents are made available to both parties. Discovery ensures that both parties in the proceedings can:

  • obtain proper advice on their chances of success; and 
  • prepare their case before trial. 

The main objects of the discovery process are to: 

  1. ensure that both parties understand the details of the case;
  2. avoid any surprises at the trial; and
  3. encourage a settlement before trial.

This article will discuss some of the key elements of discovery and explain what happens if you fail to complete discovery. 

What Documents Must Be Discovered? 

Discovery only includes documents that relate to the proceedings. These documents are usually determined  during the pleadings, which is when you and the other side file your formal documents before the trial. 

For example, in a breach of contract case between a fashion brand and a manufacturer, any documents relating to the standard of the clothes may be relevant. However, a document about the owner of the fashion brand having an affair is unlikely to be relevant to the proceedings. Therefore, it could not be used in discovery

However, the court often takes a wide view of which documents relate to proceedings. Discovery sometimes includes any documents that could indirectly advance your case or damage the case of the other party. If you can link the document back to your argument against the other party, it is likely to be eligible for discovery. 

What Is the Process for Discovery?

Discovery typically occurs once pleadings are complete. However, discovery can also occur before court proceedings begin. This is called preliminary discovery

Each side must provide the other with a verified list of documents. You will then be allowed to inspect the documents and take copies. 

How Can the Discovered Documents Be Used by the Parties? 

When you receive documents from the other side during discovery, you cannot share the contents of the documents with: 

  • the public; or
  • anybody outside the proceedings. 

You may only use the documents during the court proceedings that they are discovered in. This means that you may not use the documents in any other current or future proceedings.

Unless the discovery documents become part of evidence, you can usually only use them for the purpose they are received for. If you or the other side appears to be using the documents for another reason, the court will stop this improper use and could punish the party misusing the documents.

Following the discovery process, you or the other side may be able to use the documents as evidence in open court. This means they will enter the public record. You should consider the impact of any information becoming public before the trial starts. Often, this risk forces parties to settle disputes before they reach trial.  

What if a Party Fails to Make Discovery or a Proper Discovery? 

It is very important to properly comply with the discovery process. Failing to do so can have serious consequences. If you do not complete discovery at all or undertakes an inadequate discovery, the court will order you to comply with the discovery request. 

If you still do not comply, the court may dismiss all or part of the proceedings. Costs orders may also be made against you. 

Key Takeaways

If you are one of the parties of a civil proceeding, you will have to go through the process of discovery. Failing to comply with your discovery obligations may lead to serious consequences. If you need assistance or representation in a civil proceeding, contact LegalVision’s litigation lawyers on 1300 544 755 or fill out the form on this page. 


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