Melbourne Litigation LawyerDiscovery is a Court mandated process of having litigants view documents that are relevant to issues being litigated before a Court.  The issues being litigated will generally depend upon the pleadings (court documents) filed by the Plaintiff and the Defendant and other parties. Generally, a statement of claim filed by a Plaintiff will set out the cause of action (legal basis) relied upon by the Plaintiff to seek the remedy claimed, and the Defence will raise, with reference to the statement of claim, a number of issues that attempt to legally avoid, defend or traverse facts pleaded in the claim by way of raising factual or legal issues. The narrowing of issues by pleadings allows the court to confine issues for trial (the hearing of the matter that happens at the end). A trial involves the testing of the matters raised in pleadings with the evidence. Documents are discovered by litigants during the process and according to Court rules, and generally the basis of good written evidence for the hearing.

Generally, a litigant’s obligation to provide discovery to the other party will generally depend upon the:

  1. Issues in dispute (so the pleadings); and
  2. Relevant Court Rules and Civil Procedure;

Recent Law Reform over the past decade has meant that discovery is becoming more limited.[1] This is because in the past discovery was used by parties as more of a strategic method to create a long and arduous process of civil procedure that could significantly increase costs for parties and delay dispute resolution in the Courts.

Today, limited discovery rules give the Court power to require litigants to narrow issues in dispute and thus their discoverable documents. Parties need to seek discovery of documents only with a legitimate basis for doing so. Parties should only seek copies of documents that are relevant to the issues in dispute (so once pleadings have been served) and only seek documents that are not already in their own possession.

For example, pursuant to the Magistrates Court General Civil Procedure Rules (Vic) (r. 29.01.1(1)) discoverable documents include documents:

  1. on which the party relies;
  2. that adversely affect the party’s own case;
  3. that adversely affect another party’s case;
  4. that support another party’s case.

However, if a party giving discovery reasonably believes that a document is already in the possession of the party to which discovery is given, the party giving discovery is not required to discover that document. (r. 29.01.1(4)). Further, a litigant’s obligation to give discovery is further limited by (r. 29.01.1(5)):

(a) the nature and complexity of the proceeding;

(b) the number of documents involved;

(c) the ease and cost of retrieving a document;

(d) the significance of any document to be found; and

(e) any other relevant matter.

Accordingly, it is necessary to check the issues in dispute and the relevant Court Rules to ascertain what documents are firstly relevant to the Court, and then actually discoverable according to the Court rules between the litigants, to avoid delaying matters unnecessarily with unnecessary disputes over obligations of discovery.

One example of where discovery will not be ordered is where a Defendant has not yet entered an appearance. In the case of Gould v National Provincial Bank Ltd [1960] Ch 337; [1960] 1 All ER 544 the view was expressed that because there was no Defence delivered, there was no issue between the plaintiff and the defendant, and as such, there was nothing in relation to which discovery could be ordered.

Kristine Hopkins


(VIC) Magistrates’ Court General Civil Procedure Rules 2010 – Order 29.

Gould v National Provincial Bank Ltd [1960] Ch 337; [1960] 1 All ER 544

[1] Such as the Magistrates Court Rules (Vic) “(1) Unless the Court otherwise orders, discovery of documents pursuant to this Order is limited to the documents referred to in paragraph (3)”