Introduction
“One of the advantages of being disorganised is the joy of discovery”. However, this does not necessarily apply in the legal world, and especially not when conducting litigation.
When the rules of engagement on legal proceedings are distilled to their very core, one of the fundamental and early stages of a legal dispute is an exchange of documents between the parties. In fact, it is extremely rare, and possibly strategically unwise, for a party to a dispute to not want to exchange documents.
By way of example:
- Parties to an injury claim will most likely exchange documents regarding the type of medical treatment received by the injured person and how much it cost.
- Parties disputing the purchase of an item would be expected to discover (i.e., make available) the written contracts, and any purchase orders, invoices or receipts.
This article explores the concept of discovery and relevance.
Caveat
Law articles should never be substituted for legal advice. When it comes to legal advice, one size does not fit all. Particularly, in this article, we encourage our readers to note that the process of discovery, or disclosure as it is called in some jurisdictions, varies for a number of reasons, due to the following:
- The rules of the relevant court or tribunal in which any the dispute is proceeding;
- Case law and authorities relevant to the forum and jurisdiction; and
- The issues in dispute between the parties.
For instance, in Queensland, when the pertinent injury legislation was introduced in 2002 and 2003 as part of the national tort reforms, investigation reports and statements prepared in contemplation of, or in response to, a claim needed to be disclosed. The fundamental purpose of enacting such a sweeping change was to force the parties to reveal their worst hand and thus encourage a settlement between the parties.
Discovery
Discovery (also known as disclosure) is the process by which parties to a dispute disclose to one another the details of relevant documents and provide each party with access to those relevant documents before going to a mediation or trial.
The key aims of discovery are to:
- Allow each party to properly understand the issues in dispute;
- Prevent a party from being ambushed at a trial;
- Encourage a party to disclose the strength of its case or to reveal the weakness of their case to prevent further action;
- Save costs by not allowing litigation to continue because relevant documents are not exchanged; and
- Encourage settlement.
Relevance
When it comes to discovery, one of the first things that is considered is ‘relevance’.
For a document to be relevant, there needs to be a point of reference. Therefore, the pleadings (written allegations) exchanged between the parties, or the allegations levelled by one party against another party, is ordinarily used as that initial point of reference.
When parties exchange pleadings which are properly drafted, the pleadings:
- Spell out the parties’ allegations against one another;
- Clarify where and how the parties do not agree; and
- Therefore, identify what document may be relevant to prove or disprove an allegation which is not agreed.
The concept of “relevant” has been explored in many judgments over the years. As you would expect, parties to a dispute may not wish to discover a document, or series of documents, if taking such a step would harm that party’s prospects. Hence, the parties require court intervention to determine whether a document is relevant.
Subject to the rules and case law relevant to a certain jurisdiction, it would be expected that a party will discover documents in that party’s possession, custody or power and which:
- would be evidence upon any issue in the dispute;
- may, either directly or indirectly, enable the party to advance its own case;
- may directly, or indirectly, damage the case of the other party; or
- may directly, or indirectly, allow the other party to undertake a line of enquiry.
What is a document?
A document need not be just a piece of paper.
Upon reviewing the various rules for the many forums around Australia, you would come to find that a document includes a disc, tape, CCTV footage, storage on a pc/laptop/mobile, or negative.
Practical example
Let’s imagine there are two parties, Party A and Party B, and these parties have a fight over the purchase of an item. Party A alleges that Party B never paid for the item and party B alleges that it did pay for the item, but never received it.
Then common sense would dictate that relevant documents would include company receipts, screenshots of bank transactions or remittance invoices. Such documents would establish whether that payment was made.
Similarly, if Party B uncovers a record confirming that their attempted money transfer to Party A’s account was declined, Party B is obliged to discover that declinature notice – even though that document damages the case of Party B.
Privacy
One final point which should not be overlooked is that parties to a dispute should be mindful of the relevant privacy legislation – both nationally and in the jurisdiction of each state and territory.
Takeaways
If you are a claims manager or instructor for a party in a dispute, please anticipate that your solicitor will write to you to request information relevant to the claim. This is, in effect, the first stage of discovery.
This article, despite not providing advice, sheds light upon the discovery process.
While discovery may seem like a burdensome and costly task, engaging in discovery properly helps in limiting the issues in dispute and may lead to an amicable outcome through negotiations.
Of course, if you receive a request for discovery which is unduly burdensome (also known as a ‘fishing expedition’) i.e., providing discovery will lead to the incurring of significant costs and delay which is not reasonable in the circumstances of a claim, then you may be able to successfully object to the request for discovery.
More information
If you have any questions, please do not hesitate to contact us:
David Giacomantonio
Consultant
M: 0418 154 138
E: dgiacomantonio@pageseager.com.au
Hari Gupta
Senior Associate
T: (03) 6235 5133
E: hgupta@pageseager.com.au
Published: 2 November 2023
