Method of discovery sought
16 In the interlocutory application, Dr Raiz seeks orders for non-standard discovery in accordance with r 20.15 and rr 20.14(1) and (2) of the Federal Court Rules 2011 (Cth) (Rules).
17 Rule 20.15 provides for orders for non-standard and more extensive discovery as follows:
20.15 Non‑standard and more extensive discovery
(1) A party seeking an order for discovery (other than standard discovery) must identify the following:
(a) any criteria mentioned in rules 20.14 (1) and (2) that should not apply;
(b) any other criteria that should apply;
(c) whether the party seeks the use of categories of documents in the list of documents;
(d) whether discovery should be given in an electronic format;
(e) whether discovery should be given in accordance with a discovery plan.
(2) An application by a party under subrule (1) must be accompanied by the following:
(a) if categories of documents are sought -- a list of the proposed categories; and
(b) if discovery is sought by an electronic format -- the proposed format; and
(c) if a discovery plan is sought to be used -- a draft of the discovery plan.
(3) An application by a party seeking more extensive discovery than is required under rule 20.14 must be accompanied by an affidavit stating why the order should be made.
(4) For this Division:
"category of documents" includes documents, or a bundle of documents, of the same or a similar type of character.
18 Rules 20.14(1) and (2) concern the scope of documents to be discovered by a party ordered to give standard discovery:
(1) If the Court orders a party to give standard discovery, the party must give discovery of documents:
(a) that are directly relevant to the issues raised by the pleadings or in the affidavits; and
(b) of which, after a reasonable search, the party is aware; and
(c) that are, or have been, in the party's control.
(2) For paragraph (1)(a), the documents must meet at least one of the following criteria:
(a) the documents are those on which the party intends to rely;
(b) the documents adversely affect the party's own case;
(c) the documents support another party's case;
(d) the documents adversely affect another party's case.
19 Where a party seeks the non-standard discovery of documents by category, the party giving discovery is generally not required to take a decision on the matters raised in r 20.14 of the Rules. Accordingly, the criteria of standard discovery contained in r 20.14 is excluded unless those criteria are expressly incorporated into the order for non-standard discovery. In the present case, Dr Raiz has expressly incorporated the r 20.14 criteria, seeking in the interlocutory application, "non-standard discovery in accordance with Rule 20.15 and Rules 20.14(1) and (2) of the [Rules]".
20 Relevantly, r 20.14(1)(a) requires the discovering party only to disclose documents "directly relevant" to the allegations in issue. In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2011] FCA 1396, in determining whether certain documents were "directly relevant" under an application for standard discovery, Collier J referred to various authorities decided in the context of the rules of the State Courts. Her Honour approved the view that "directly relevant" means something that tends to prove or disprove the allegation in issue: at [34] citing Robson v Reb Engineering Pty Ltd [1997] 2 Qd R 102 at 105 per Demack J. However, in contrast to the rules relating to discovery in the State Courts, under r 20.14(1), what documents will be considered "directly relevant" to the issues raised is, to some extent, given content by the matters listed in sub-r 20.14(2). In United Voice v Accolade Wines Australia Ltd [2013] FCA 285 at [21], Lander J stated that no documents other than those described in r 20.14(2) can be said to be "directly relevant" within r 20.14(1)(a): see also Adelaide Brighton Cement Ltd, Re Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) (No 3) [2018] FCA 1058 at [3]-[12] per Besanko J.
21 Rule 20.14(1)(b) otherwise contemplates that the documents to be discovered are only those which the party can become aware of by "a reasonable search". This expression is not defined. In Galati v Potato Marketing Corporation of Western Australia (No 2) [2007] FCA 919, Siopsis J considered at [59] that the rule means what it says in that no more than a reasonable search is required, and it certainly does not necessitate a review of "all documents".
22 Central Practice Note: National Court Framework and Case Management (CPN-1) otherwise states the following regarding the searches to be undertaken by a party obliged to make discovery:
10.8 If the Court approves a Request, a Discovery Respondent's search for and production of documents pursuant to a Request must be: made in good faith, uninfluenced by any negative impact on the Discovery Respondent (other than legitimate considerations such as genuine legal professional privilege or commercial confidentiality), and should be comprehensive, but proportionate.
…
10.10 Where a Request has been approved by the Court, a Discovery Respondent must, if requested to do so by a Discovery Applicant, provide a brief description of the steps taken by the Discovery Respondent to conduct a good faith proportionate search to locate discoverable documents, such as what records have been searched for, what search criteria or terms have been used, or what databases have been searched.
10.11 Where a Discovery Respondent asserts that documents are unavailable or burdensome to access and discover, the Discovery Respondent must clarify to the Discovery Applicant (unless there is demonstrably no need to do so), how the Discovery Respondent manages, stores, accesses, destroys and disposes of documents. The Court may require a Discovery Respondent to depose to such information.
(Emphasis added.)
23 If an order for discovery is made, once the search for documents is complete, discovery is given by the party serving a list of documents in accordance with rr 20.16 and 20.17 of the Rules.