Final Report (September 1999) - Law Reform Commission of ...
REVIEW OF THE CRIMINAL AND CIVIL JUSTICE SYSTEM Discovery in practice Discovery and the adversarial system 13.4 Amendments to the Supreme Court Rules enable the court to limit the ambit of discovery and to order discovery at any time, in accordance with principles of positive case-flow management. However, both powers appear to have had little impact in practice: discovery is rarely limited by court order and it still normally occurs at the close of pleadings. It is unclear whether this is because practitioners are unaware of the provisions or there is a general reluctance to use them. 13.5 There is no discovery process in inquisitorial legal systems. All major documents relevant to the case are appended to the claim and response. (However a broader range of professions can claim privilege against disclosure than is permitted in adversarial systems.) Furthermore, unlike the system in Western Australia, inquisitorial judges play an active role in ‘digging’ for the facts. In our system judges do not play an investigative role and the parties are required to do their own ‘digging’. Although many of our recommendations would see judges take a more active role in case management, none go so far as to suggest that judges and magistrates adopt an investigative approach. Apart from anything else such a reform would have enormous resourcing implications. 13.6 Our recommendations to restrict the existing system of pleadings (Chapter 10) do not go so far as to mirror the position in inquisitorial systems. Parties only need append to case statements copies of relevant documents going to make out their own case. Documents damaging to one’s own case or useful to an opponent need not be appended. Further, we are not recommending that judges have the power to investigate the existence of documents. It follows that, in Western Australia, disclosure will remain important and should not be abolished. However, the benefits of disclosure through the existing discovery processes often have been obtained at too high a cost. The Peruvian Guano test 13.7 The cost of disclosure is related almost directly to the number of documents discovered. The Peruvian Guano test (from Compagnie Financière du Pacifique v Peruvian Guano Co (1882) 11 QBD 55) established the existing test for discovery. Under that test, the range of potentially relevant and therefore discoverable documents is virtually unlimited: a document is discoverable if it may ‘fairly lead [the party] to a train of inquiry which may have either of … two consequences’ — directly or indirectly to advance the party’s own case or to damage the case of the adversary. Although there are well-documented instances of problems with discovery in large commercial and banking cases, there is no recent empirical data on the costs and benefits of discovery in relation to other cases. Although the extent of the problem is unclear, in Queensland, the discovery procedure has been reformed so that the obligation to disclose documents now is limited to material which is 104
DISCLOSURE directly relevant to a matter in issue. The Federal Court Rules (Cth) also have been amended to remove any presumption in favour of general discovery. From discovery to disclosure — stopping the train of inquiry 13.8 Discovery was based on a test of indirect relevance. We recommend a new name, ‘disclosure’, and a new test for this process: disclosure should be limited to documents that are directly relevant to a matter in issue. To be disclosed, documents should not be merely tangentially relevant, leading to a train of inquiry, or relevant only to credibility or similar fact. Rather, documents must bear directly on an issue joined in the exchange of case statements. (See Chapter 10.) Further, there should be no disclosure as of right. Any categories of document sought to be disclosed should be put by a party to the case manager and should be allowed only if the case manager is satisfied that disclosure would contribute to the just resolution of the dispute. 82. The case manager should have a discretion, usually exercised at the status conference, to order disclosure of documents that are directly relevant to the issues in dispute. The party who is seeking the documents should apply for disclosure. Leave should only be granted where the case manager has identified a category of documents which bears directly on an issue arising out of the exchange of case statements. The case manager must be satisfied the disclosure would contribute to the just resolution of the case so that the time and cost involved are proportional to the significance of the dispute. 83. The court should retain a discretion to order disclosure in phases, particularly for, but not limited to, drawing a distinction between documents relating to issues of liability, and documents relating to issues of damages. 84. Strict time limits for complying with orders for disclosure should be imposed and not be departed from unless there exists very good cause. Subpoenas 13.9 Subpoenas — literally ‘under penalty’ — are documents issued to ensure that witnesses attend court proceedings and can require witnesses to bring any material documents in their possession. No subpoena against a party should be allowed to undermine the recommended limits on disclosure. In our view, any subpoena that seeks to have a party disclose documents which would not be subject to disclosure under the recommended test should be set aside as an abuse of process. 85. No subpoena against a party to compel production of documents in relation to a civil action should be allowed. 105
REVIEW OF THE CRIMINAL AND CIVIL JU
REVIEW OF THE CRIMINAL AND CIVIL JU
1 Touchstones The legal system on t
TOUCHSTONES Procedure Expense and d
TOUCHSTONES criminal justice system
TOUCHSTONES him or her adversely. W
2 The Justice System The existing s
THE JUSTICE SYSTEM acts even though
THE JUSTICE SYSTEM various Acts and
3 The Civil System The origins of o
THE CIVIL SYSTEM • in which a dis
THE CIVIL SYSTEM Pleadings as forma
THE CIVIL SYSTEM • settlement and
THE CIVIL SYSTEM own costs but also
4 The Criminal System The criminal
THE CRIMINAL SYSTEM Sessions. If a
THE CRIMINAL SYSTEM Jury or judge a
5 Measuring the Justice System The
MEASURING THE JUSTICE SYSTEM civil
MEASURING THE JUSTICE SYSTEM increa
MEASURING THE JUSTICE SYSTEM • th
6 The Adversarial System of Civil L
THE ADVERSARIAL SYSTEM OF CIVIL LIT
THE ADVERSARIAL SYSTEM OF CIVIL LIT
SELF-REPRESENTED LITIGANTS we are c
SELF-REPRESENTED LITIGANTS make cou
SELF-REPRESENTED LITIGANTS how to i
19 Unreasonable and Malicious Litig
UNREASONABLE AND MALICIOUS LITIGANT
UNREASONABLE AND MALICIOUS LITIGANT
20 Evidence Why is there a law of e
EVIDENCE • it contains a number o
EVIDENCE evidence is minimised at t
EVIDENCE in chief. The exchange of
21 The Limits of Examination and Cr
THE LIMITS OF EXAMINATION AND CROSS
THE LIMITS OF EXAMINATION AND CROSS
THE LIMITS OF EXAMINATION AND CROSS
THE LIMITS OF EXAMINATION AND CROSS
22 Expert Evidence Expert evidence
EXPERT EVIDENCE exchange of expert
EXPERT EVIDENCE opposing party subp
EXPERT EVIDENCE Concerns over not r
23 Criminal System — Overview The
CRIMINAL SYSTEM — OVERVIEW basis
24 The ‘Right to Silence’ What
THE ‘RIGHT TO SILENCE’ speaking
THE ‘RIGHT TO SILENCE’ The defe
THE ‘RIGHT TO SILENCE’ ii. iii.
25 Alternative Criminal Charge Reso
ALTERNATIVE CRIMINAL CHARGE RESOLUT
ALTERNATIVE CRIMINAL CHARGE RESOLUT
ALTERNATIVE CRIMINAL CHARGE RESOLUT
26 Joinder Fair trials and the issu
JOINDER 271. The existing principle
JOINDER 273. The existing principle
27 Criminal Process in the Court of
CRIMINAL PROCESS IN THE COURT OF PE
CRIMINAL PROCESS IN THE COURT OF PE
CRIMINAL PROCESS IN THE COURT OF PE
CRIMINAL PROCESS IN THE COURT OF PE
CRIMINAL PROCESS IN THE COURT OF PE
CRIMINAL PROCESS IN THE COURT OF PE
CRIMINAL PROCESS IN THE COURT OF PE
28 Preliminary Hearings What are pr
PRELIMINARY HEARINGS brief at trial
PRELIMINARY HEARINGS to be tendered
PRELIMINARY HEARINGS Proposal G Abo
29 Criminal Process in the Higher C
CRIMINAL PROCESS IN THE HIGHER COUR
CRIMINAL PROCESS IN THE HIGHER COUR
CRIMINAL PROCESS IN THE HIGHER COUR
CRIMINAL PROCESS IN THE HIGHER COUR
30 Trial by Judge Alone Trial by ju
TRIAL BY JUDGE ALONE according to c
TRIAL BY JUDGE ALONE 333. Except wh
TRIAL BY JUDGE ALONE a successful a
31 Criminal System — Costs Costs
CRIMINAL SYSTEM — COSTS • where
CRIMINAL SYSTEM — COSTS reasonabl
32 Appeals The system of appeals Ap
APPEALS of a decision can be appeal
APPEALS • appeals from a judge or
APPEALS • questions of relevance
APPEALS 355. Order 65B rule 3 (3)b
APPEALS Short form judgments 32.24N
APPEALS requirements in civil matte
APPEALS no appeal against an acquit
APPEALS to serve that purpose. Ther
33 Boards and Tribunals Boards and
BOARDS AND TRIBUNALS consistent pro
BOARDS AND TRIBUNALS 374. If all bo
BOARDS AND TRIBUNALS 383. Original
BOARDS AND TRIBUNALS 391. Where the
34 The Court Environment Architectu
THE COURT ENVIRONMENT there walls,
THE COURT ENVIRONMENT them. Court s
THE COURT ENVIRONMENT of courts adj
THE COURT ENVIRONMENT 412. Future c
THE COURT ENVIRONMENT Courts’. As
THE COURT ENVIRONMENT Self-represen
THE COURT ENVIRONMENT vulnerable wi
35 Technology and Justice The impac
TECHNOLOGY AND JUSTICE Uniformity i
TECHNOLOGY AND JUSTICE Authenticity
TECHNOLOGY AND JUSTICE 35.17 Recent
TECHNOLOGY AND JUSTICE 35.23 In the
36 The Legal Profession The legal p
THE LEGAL PROFESSION role of the le
THE LEGAL PROFESSION • While ther
THE LEGAL PROFESSION through to the
37 Private Civil Courts The adversa
PRIVATE CIVIL COURTS 446. Private c
Appendix 1 Acknowledgments The memb
ACKNOWLEDGEMENTS Charles Brookes Do
ACKNOWLEDGEMENTS Lizzie Hill Gisell
ACKNOWLEDGEMENTS Hon Judge MDF O’
ACKNOWLEDGEMENTS Anna Wasylkewycz M
GLOSSARY Applicant Application to s
GLOSSARY Disbursements Discovery Mo
GLOSSARY 'Interest-based' mediation
GLOSSARY Plaint Plaintiff Practisin
GLOSSARY and a timetable for the ca
REVIEW OF THE CRIMINAL AND CIVIL JU
Bibliography of In-text References
BIBLIOGRAPHY of Court Rules and Pro
BIBLIOGRAPHY Family Law Act 1975 (C
REVIEW OF THE CRIMINAL AND CIVIL JU
List of Recommendations The justice
RECOMMENDATIONS 14. The Criminal Co
RECOMMENDATIONS (3) the practitione
RECOMMENDATIONS (2) if a practition
RECOMMENDATIONS 54. The current pra
RECOMMENDATIONS 74. The neutral con
RECOMMENDATIONS specified in the li
RECOMMENDATIONS 106. Either party s
RECOMMENDATIONS 124. Court staff sh
RECOMMENDATIONS 141. Limited contin
RECOMMENDATIONS 160. All Local Cour
RECOMMENDATIONS 174. Unless good ca
RECOMMENDATIONS practice direction
RECOMMENDATIONS 203. The Local Cour
RECOMMENDATIONS (3) The Act include
RECOMMENDATIONS 226. The use and ex
RECOMMENDATIONS 246. Where there ar
RECOMMENDATIONS 258. If practicable
RECOMMENDATIONS can be overcome by
RECOMMENDATIONS (3) enabling senten
RECOMMENDATIONS (3) any other agree
RECOMMENDATIONS at the close of the
RECOMMENDATIONS 340. When a ruling
RECOMMENDATIONS be made before the
RECOMMENDATIONS 376. The WACAT shou
RECOMMENDATIONS 393. Full-time and
RECOMMENDATIONS seek feedback from
RECOMMENDATIONS 436. All technologi