Legal framework

2.2 This part of the chapter outlines the current law imposing the obligation to discover documents and the range of documents a party may be required to disclose in the federal civil court system.

High Court of Australia

Obligation to discover documents

2.3 There are no specific provisions in the High Court Rules 2004 (Cth) about the obligation to make discovery of documents. Should circumstances arise in proceedings before the High Court that necessitate the discovery of documents, a party may apply to the court for directions.[1]

Scope of discoverable documents

2.4 In the absence of specific provisions or directions to the contrary, the ‘train of inquiry’ test as propounded in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co[2] (Peruvian Guano) and adopted in Australia[3] remains the test of general application for discovery in the High Court. In the Peruvian Guano case Brett LJ stated:

It seems to me that every document relates to the matters in question in the action, which not only would be evidenced upon any issue, but also which, it is reasonable to suppose, contains information which may—not which must—either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words ‘either directly or indirectly’ because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.[4]

Federal Court of Australia

Obligation to discover documents

2.5 The availability of discovery in the Federal Court is restricted by provisions in the Federal Court Rules (Cth). The rules require that in all cases a party must have the leave of the court to file and serve a notice for discovery.[5] The court must determine an application for leave for discovery in the way that best promotes the overarching purpose of civil practice and procedure, being the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible.[6]

2.6 Where leave for discovery is granted—and a notice for discovery is served—the party required to give discovery must do so within the time specified in the notice, not being less than 14 days after service, or within such time as the court directs.[7] Unless the court otherwise orders, the party must give discovery by serving a list of documents required to be disclosed and an affidavit verifying that list.[8]

2.7 The court may, subject to any question of privilege which may arise, order a party to produce a document which appears from its list of documents to be in the party’s possession, custody or power.[9]

2.8 However, the rules state that the court shall not make an order for the filing or service of any list of documents or for the production of any document unless it is necessary at the time the order is made.[10] The word ‘necessary’ in this context has been interpreted as meaning ‘reasonably necessary in the interests of a fair trial and of the fair disposition of the case’.[11]

2.9 In determining whether to make orders for the discovery of documents, Practice Note CM 5 states that 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 cost of the discovery and its likely benefit.[12]

2.10 Where orders for discovery are made by the court, the party’s discovery obligation is ongoing in the sense that the party must continue to discover any documents not previously disclosed which would be necessary to comply with the order.[13]

Scope of discoverable documents

2.11 In the Federal Court, the Peruvian Guano test of relevance has been replaced with broad categories of documents ‘required to be disclosed’ pursuant to O 15 r 2(3) of the Federal Court Rules. The documents required to be disclosed in the Federal Court are any of the following documents of which the party giving discovery is, after reasonable search, aware at the time discovery is given:

documents on which the party relies; documents that adversely affect the party’s own case; documents that adversely affect another party’s case; and documents that support another party’s case. [14]

2.12 A number of matters are specified by O 15 r 2(5) as matters which may be taken into account by a party in making a ‘reasonable search’, namely:

the nature and complexity of the proceedings; the number of documents involved; the ease and cost of retrieving a document; the significance of any document likely to be found; and any other relevant matter.

2.13 Order 15 r 3 subsequently provides that the court may limit discovery orders to specific documents or classes of documents, or in relation to specific matters in question in the proceeding, to prevent unnecessary discovery.

2.14 Orders for discovery of documents as contemplated in O 15 r 2 are referred to as orders for ‘general discovery’.[15] The Rules do not expressly prohibit orders for broader discovery of documents outside these general categories, for example, orders for discovery of all relevant documents within the Peruvian Guano test.[16] However, the court has held that, not only should discovery be contained by the general categories in O 15 r 2,[17] in the normal course of events, discovery should be limited to the specific documents or classes of documents contemplated in r 3. In Racing New South Wales v Betfair Pty Ltd, Buchanan, Jagot and Foster JJ stated that:

as apparent from Order 15 r 2(3) of the Federal Court Rules, discovery ordinarily should be limited to the documents on which the party relies and the documents that adversely affect or support that party’s case or the case of another party. Moreover, Order 15 rr 3(1) and (2) indicate that, if anything, discovery by order should be restricted rather than expanded.[18]

2.15 The practice and procedure for formulating limited categories of documents for the purposes of discovery is considered in Chapter 3.

2.16 If the party does not search for a category or class of document, the rules require that party to include in their list of discoverable documents a statement of the category or class of document not searched for, and the reason why.[19]

2.17 A party is required by the Federal Court Rules to discover documents which are or have been in that party’s possession, custody or power.[20] It is not necessary to disclose a document if the party giving discovery reasonably believes that the document is already in the possession, custody or control of the party to whom discovery is given.[21]

2.18 The Federal Court Rules also exclude from the ambit of discovery additional copies of documents, which are not discoverable purely because the original or any other copy is discoverable.[22]

2.19 While the rules require a party giving discovery to identify in their list of discoverable documents any document which they claim is privileged,[23] the party can rely on a privilege claim to refuse production of the document for inspection.[24]

Family Court of Australia

2.20 In the Family Court, as discussed below, the duty of disclosure is absolute. This may be a reflection of the court’s jurisdiction. As noted in Briese and Briese, ‘the need for each party to understand the financial position of the other party is at the very heart of cases concerning property and maintenance’.[25]

Obligation to disclose documents

2.21 The Family Law Rules impose a general duty of disclosure on a party to a family law dispute, whether financial or parenting, independently of any action of the Family Court or another party. The duty of disclosure is imposed from the start of pre-action procedures for a case and runs until the case is finalised.[26]

2.22 This means that a party must continue to make disclosures as circumstances change and as documents are created or come into the party’s possession or control.[27] The rules require parties to comply with their duty of disclosure in a timely manner.[28]

Scope of disclosure obligations

2.23 The general duty of disclosure under the Family Law Rules requires each party to a case to give full and frank disclosure of all information relevant to the case.[29] The duty of disclosure applies to each document that is or has been in the possession, or under the control, of the party disclosing the document and is relevant to an issue in the case.[30]

2.24 The rules also impose a duty on parties to produce particular documents on the first court date for a maintenance application, on the first court date for a child support application or appeal, at a conference in a property case and at trial.[31]In financial cases there are specific rules about full and frank disclosure of the party’s total direct and indirect financial circumstances.[32]

Federal Magistrates Court of Australia

2.25 The jurisdiction conferred on the Federal Magistrates Court overlaps with that of the Family Court and the Federal Court. This section of the chapter examines the obligations on parties to disclose information and documents in financial matters under the court’s family law jurisdiction. It also considers the rules which apply in all proceedings before the Federal Magistrates Court for the discovery of documents.

Obligation to discover documents

2.26 Section 45 of the Federal Magistrates Act 1999 (Cth) provides that discovery in relation to proceedings in the Federal Magistrates Court is not allowed unless the Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the discovery.

2.27 Section 45(2) of the Act requires the Court or a Federal Magistrate, in deciding whether to make a declaration for discovery of documents, to have regard to:

whether allowing the discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and such other matters (if any) as the Federal Magistrates Court or the Federal Magistrate considers relevant.

Scope of discoverable documents

2.28 If a declaration for discovery of documents is made under s 45 of the Federal Magistrates Act, the Court or Federal Magistrate may make an order for discovery:

generally; in relation to particular classes of documents; in relation to particular issues; or by a specified date. [33]

2.29 The Federal Magistrates Court Rules 2001 (Cth) provide that a party may be required to discover documents which are or have been in that party’s possession, custody or control.[34] However, a party may refuse to produce for inspection privileged documents disclosed in their affidavit of discoverable documents.[35]

Obligation to disclose documents

2.30 Part 24 of the Federal Magistrates Court Rules imposes a duty of disclosure on parties to financial matters in the court’s family law jurisdiction. This includes a requirement for the applicant and respondent to file and serve a financial statement, giving full and frank disclosure of their financial circumstances, together with their application or response.[36]

2.31 The rules also impose an obligation on the respondent, in proceedings for maintenance, to bring certain categories of documents to court on the first court date.[37] In other financial matters, the applicant and respondent must file and serve on each other certain categories of documents within 14 days after the first court date.[38]

Scope of disclosure obligations

2.32 A financial statement filed and served pursuant to part 24 of the Federal Magistrates Court Rules must give full and frank disclosure of the party’s total direct and indirect financial circumstances, including details of any interest in property, income from all sources and other financial resources.[39]

2.33 In proceedings for maintenance, the categories of documents that a respondent must bring to court include a taxation assessment and taxation return for the most recent financial year, bank records for the 12 months before the application was filed and the respondent’s most recent pay slip.[40]

2.34 In other financial matters, the categories of documents that the parties must file and serve on each other include the parties’ three most recent taxation assessments and taxation returns, copies of the last four business activity statements (if a party has an Australian Business Number) and details of any superannuation plan.[41]