REVIEW OF THE CRIMINAL

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