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Law reform of discovery process imminent
The government is considering law reform to the discovery process in civil litigation, and has called on legal experts to tell it what to do.
The New Lawyer
THE government is considering law reform to the discovery process in civil litigation, and has called on legal experts to tell it what to do.
Attorney-General, Robert McClelland, today revealed the government has asked the Australian Law Reform Commission to explore option to improve the discovery process in civil litigation to promote the early and proportionate exchange of information and evidence in court proceedings. The government is now considering how law reform could improve the ability of parties to identify the real issues in dispute and ensure the costs of resolution are proportionate to the issues involved, McClelland said. A 2009 report by the Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System, examined access to jcivil justice in the federal system. The taskforce noted the high and often disproportionate cost of discovery and recommended further enquiry on the issue. The ALRC has now been handed the task of considering alternatives to discovery, as well as the role of courts in managing discovery, including courts’ case management powers. The ALRC will also have to consider cost issues such as cost capping, security for discovery costs, and upfront payment. Implications of the cost of discovery on litigation, including ways to limit how far discovery gives rise to satellite litigation, will also be assessed. The impact of technology on the discovery of documents will also be considered “The reference will also consider the impact of technology on the discovery of documents and will assist work being undertaken by the courts to ensure that resources are directed to fair and affordable dispute resolution,” McClelland said. In conducting its inquiry, the Attorney has requested that the Commission consult closely with the courts, legal profession and other relevant stakeholders and consider, where appropriate, the experience of international jurisdictions. The Commission will provide its final report to the Attorney-General by 31 March 2011.
