What is Discovery?

Australian civil jurisdictions (both State and Federal) are adversarial in nature. This means that each party is expected to present its legal arguments and all relevant evidence in support of its case. A failure to do so might result in a court or tribunal deciding against a party even if they presented irrefutable legal arguments and evidence. Below, we explain what is discovery in civil litigation, how it applies and why it’s important.

Why Do I Need to Give the Other Side Documents?

For a party to prove its claim or defence, it is often the case that it will require an opposing party to provide documents and information to use as evidence. Additionally, it is in the interests of the parties involved in litigation to receive all the documents and information that may be relied upon, so as to obtain proper advice on its prospects of success and to prepare its case before trial.

Australian civil jurisdictions (and other common law jurisdictions) have enshrined the process of discovery into their civil litigation procedures. Discovery is the name given to the process by which each party is required to produce to the court and each other party all documents and information in its possession that are relevant to the proceeding. Also, if relevant documents and information were in a party’s possession at an earlier time, the party will be required to state when they were last in its possession and who they gave them to.  

What Can Parties Use the Documents For?

To ensure that parties do not abuse the discovery process to obtain documents and information for ulterior motives, each Australian jurisdiction mandates that discovered documents can only be used for the purpose of the proceeding. Importantly, once a document is read into evidence in open court, it will have entered the public domain and is no longer protected. This is an important consideration to be taken into account by parties to litigation in deciding:

1. Whether to litigate; and, if so
2. What issues to raise in the litigation.

If a party is unwilling to release (or does not want an opposing party to release) certain documents or information, then it may be unable to maintain/defend a proceeding. This factor can sometimes prove decisive as to whether a party settles a case at mediation (or some other point before trial) and is then an important tactical consideration for litigants.

What is the Procedure For Discovery? 

The procedure for discovery is usually by filing and serving an affidavit of documents in which a party swears or affirms as to the documents in its possession (or which previously have been in its possession) that are relevant to the case. Any documents client legal privilege (solicitor-client privilege) covers do not need to be discovered. 

However, the release or production of a document subject to client legal privilege may be regarded as a waiver. Inadvertent disclosure of privileged material is unlikely to be regarded as a waiver and will oblige the receiving party to destroy it at the earliest opportunity. A failure to destroy such material can constitute a breach of the professional practice rules governing solicitors.

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For advice or assistance in complying with an order for discovery or in clarifying the obligation to make discovery, get in touch with our disputes team on 1300 544 755.