Practice Note CM 5

PA Keane, Chief Justice 01 August 2011


RTF version (48.3 kb)

1.  This Practice Note should be read in conjunction with Part 20 of the Federal Court Rules 2011.

2.  Practitioners should expect that, with a view to eliminating or reducing the burden of discovery, the Court:

(a)  will not order discovery as a matter of course, even where the parties consent, unless discovery is necessary for the determination of issues in the proceeding;

(b)  will fashion any order for discovery to suit the issues in a particular case; and

(c)  will expec.3 kt the following questions to be answered:

(i)  is discovery necessary to facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible?

(ii) if discovery is necessary, for what purpose?

(iii)  can those purposes be achieved:

  • by a means less expensive than discovery?
  • by discovery only in relation to particular issues?

(iv)  where there are many documents, should discovery be given in a non standard form, e.g. initially on a limited basis, with liberty to apply later for particular discovery or discovery on a broader basis?

(v)  whether discovery should be given by the use of categories or by electronic format or in accordance with a discovery plan?

(vi)  should discovery be given in the list of documents by categories and by a general description rather than by identification of individual documents?

3.  In determining whether to make any order for discovery, the Court will have regard to the issues in the case and the order in which they are likely to be resolved, the resources and circumstances of the parties, the likely benefit of discovery and the likely cost of discovery and whether that cost is proportionate to the nature and complexity of the proceeding.

4.  To prevent orders for discovery requiring production of more documents than are necessary for the fair conduct of the case, orders for discovery will ordinarily be limited to the documents required to be disclosed by rule 20.14 of the Federal Court Rules 2011.