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• Mode Of Inspection
• Enforcement
• The Two-Step Process
• Verifying The List
• Proposals Not Pursued

3
Additional matters

MODE OF INSPECTION

20 THERE ARE PROVISIONS in Queensland and New South Wales

(reproduced in paragraphs B5 and B9 at appendix B) governing the manner in which the obligations of a party required to permit inspection of discovered documents are to be performed. One purpose of the rules is to attack the practice of burying a documentary smoking gun in a haystack of unsorted documents. One submitter urged that:

Practical, modern measures to facilitate inspection should be encouraged, or even made mandatory. For instance, if documents are listed using a database format, the list can be produced in the traditional file/document order, but it can also be re-sorted into chronological order without requiring more than a few minutes’ additional time. The list in traditional file/document order is necessary to reveal the context and provenance of the documents. However, a list in chronological order is much easier to check for duplicates, and also to compare holdings across files. The rules ought to require the provision of a list in chronological order as well as a list in the traditional file/document order. If each party converted its database to a generic format, the parties could also exchange electronic versions of their respective lists and then be free to sort and re-sort to their own needs.

The general view of submitters was that a mandatory generalised provision was inappropriate. We agree with this. But we recommend that Rule 307 should be amended to empower the court to remove impediments to efficient inspection. We propose that a court (when ordering inspection or subsequently) may make such order as it thinks fit to regulate the manner and order in which documents are to be arranged when produced for inspection, and to require the party producing the documents for inspection to assist in locating and identifying particular documents and classes of documents. While one would hope that ordinarily solicitors to the parties will resolve such matters between themselves, it seems sensible to give the court this power in case they do not.

ENFORCEMENT

21 Defaults are likely to fall into one of two classes:

• total failure to comply within stipulated time limits, or at all, with orders to furnish lists or make documents available for inspection; or

• purported compliance with the obligation to furnish a list, but the list being in fact non-complying. Such non-compliance may be the result either of the maker’s carelessness or of the maker’s wilful decision to conceal or destroy relevant documents.

22 The sanctions available in respect of default are these:

• If the list is verified by affidavit, the person swearing the affidavit may have committed perjury.

• The default may amount to contempt of court.[21]

• Where there has been a Rule 297 order there are wide powers under Rule 277, clauses 1 and 2 of which provide as follows:

277 Enforcement of Interlocutory Order

(1) Where a party makes default in complying with any order made on any interlocutory application, the Court may, subject to any express provision of these rules, make such order as it thinks fit.

(2) In particular, but without limiting the generality of subclause (1), the Court may—

(a) If the party in default is a plaintiff, order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceeding:

(b) If the party in default is a defendant, order that his defence be struck out and that judgment be sealed accordingly:

(c) Order that the party in default be committed:

(d) If the property in dispute is in the possession or control of the party in default, order that such property be sequestered:

(e) Order that any fund in dispute be paid into Court:

(f) Appoint a receiver of any property or of any fund in dispute.

• There are obligations imposed on solicitors, enforceable by way of costs orders or by way of disciplinary sanctions that, in practice, probably provide the most effective protection against non-compliance.[22] (They are not of course available where a litigant conducts proceedings in person.)

• Rule 305 prevents a party relying at trial on an undiscovered document.

23 We do not and cannot know the extent to which litigants cheat in the preparation of discovery lists by concealing or destroying potentially damaging documents. Submitters suggested to us that observations in our preliminary paper that “the received but perhaps over-sanguine view is that generally speaking there is honest compliance”[23] recorded an unduly cosy assumption too shaky to serve as an adequate foundation for rule making. It was suggested that experienced litigants, aware of their discovery obligations, may conceal inconvenient documents from their own lawyers. It was asserted, moreover, that the ongoing shift away from professionalism towards a more business oriented approach to lawyering meant that it can no longer be assumed that solicitors will continue to respect their obligations. We are unpersuaded by this last point. It would be a remarkably foolish lawyer who would risk the disciplinary sanctions (which could include striking off) that would result if it were found out that the lawyer had been a party to discovery abuse. We agree, however, that the sanctions need strengthening.

24 We recommend that, where the court is satisfied that there has been wilful discovery abuse, an order should be made under Rule 277(2)(a) or (b) unless the party in default satisfies the court that there are special reasons why such an order should not be made. In relation to Rule 305 we agree with the view of Justice (and former Master) Williams that the leave of the court “is not too difficult to obtain but can cause difficulty in the management of a trial through requests for adjournments following unexpected disclosure”.[24] It was the view of the Committee of District Court Judges that assisted us with submissions that:

By far the majority of “lately discovered” document applications at trial come from parties wishing to rely upon them and who with proper attention to their case and obligations would have made them available in discovery in the first place.

We recommend that the rule be modified to provide for leave to be granted only if the omission is explained to the satisfaction of the court and if the granting of the leave will not unduly delay the completion of the trial or unduly prejudice the party or parties not at fault.

25 As to the practice of “swamping”, of discovering an excessive number of documents, we recommend an express provision to the effect that where the court is satisfied that a list contains documents substantially in excess of the list-maker’s obligation, the list-maker should be liable to be penalised in costs.

THE TWO-STEP PROCESS

26 Justice Williams observed to us:

In my view, the altered process brought in by the High Court Rules in 1986 requiring discovery to be given on notice by one party to another with the Court only making an order in event of default, has not been an unqualified success. Application for orders for discovery (or for particular discovery or further and better discovery) are still common and I think consideration could be given to reverting to the previous process where a Court order for discovery was made automatically by the Registrar.[25]

We agree. A reversion to the Code of Civil Procedure provision will have the additional advantage of putting an end to the position where the Rule 277 sanctions are unavailable in respect of a Rule 293 notice. In practice, the Rule 293 notice procedure has been largely supplanted by the making of an order for discovery at a directions conference pursuant to Rule 437(7)(a).

VERIFYING THE LIST

27 We think it preferable to restore the Code of Civil Procedure requirement that lists be verified by affidavit. Because compliance with discovery obligations is difficult or impossible to police, and is heavily dependent on the list-maker’s sense of obligation, it seems to us that a formal affidavit adds a solemn and personal requirement that is appropriate.

PROPOSALS NOT PURSUED

28 Finally, we refer to some proposals (derived from the comparative material) in our discussion paper on which we invited comment, and in respect of which we do not recommend change (the paragraph references are to the portion of our discussion paper reproduced in appendix B):

• Defining the extent of search required and disclosing, as part of the verification of the list, the extent of the search in fact carried out (paragraph B13). Although this proposal received some support, most submitters believed the requirement to be excessively cumbrous and so do we.

• Defining relevance (paragraph B11). The view of submitters, with which we agree, was that the New South Wales rule referred to added nothing.

• Rechristening “discovery” as “disclosure”. This has occurred in Queensland and in England and Wales. Some submitters were of the view that New Zealand should follow suit and others were of a contrary view. There are various difficulties about using the word “disclosure” in this context. One is that it means, or at least has the flavour of, making known that which was previously unknown to the person to whom the statement is made,[26] whereas discovery as a legal term of art is wider in its meaning than this. Unnecessary tinkering with nomenclature is not to be encouraged. It is better to let things be.