AUSTRALIA Law and Practice Contributed by: Amanda Banton, Elliott Smith, Melissa Morgan and Paul Smith, Banton Group
5. Discovery 5.1 Discovery and Civil Cases
4.2 Early Judgment Applications Parties can request early judgment on specific issues. Courts can strike out cases lacking rea- sonable cause of action or defence, causing prejudice, or abusing the court process, often allowing amendments to the case. 4.3 Dispositive Motions Summary judgment or a strike-out applica- tion may be sought if a claim lacks merit, with defendants more likely to seek an order that the proceedings be struck out. Plaintiffs must show the defence is untenable to obtain summary judgment. 4.4 Requirements for Interested Parties to Join a Lawsuit Third parties can join a proceeding if necessary to resolve all matters in dispute, such as con- tribution claims or relief similar to the plaintiff’s. Defendants can request security for costs from plaintiffs, with courts considering factors like the plaintiff’s financial position and the proceedings’ genuineness and prospects. 4.6 Costs of Interim Applications/ Motions Courts can order unsuccessful interim applica- tion parties to pay the other’s costs, typically a portion of actual costs. Costs orders are usually settled after final judgment. 4.7 Application/Motion Timeframe Application timeframes vary by complexity, case circumstances, and court capacity. Urgent appli- cations require demonstrating time sensitivity. Joinder must be just and convenient. 4.5 Applications for Security for Defendant’s Costs
Discovery in Australia is limited to documents, not witness testimony. Parties access relevant documents in the other’s possession, custody, or control, subject to legal privilege. Courts seek to limit discovery scope, encouraging practical strategies like search terms for electronic docu- ments. 5.2 Discovery and Third Parties Discovery from third parties requires court orders, with applicants demonstrating the third party’s possession of relevant documents. Appli- cations must be personally served with support- ing affidavits. 5.3 Discovery in This Jurisdiction See 5.1 Discovery and Civil Cases . 5.4 Alternatives to Discovery Mechanisms Discovery mechanisms are not typically bypassed. 5.5 Legal Privilege Legal professional privilege applies to confi- dential communications or documents for legal advice or litigation purposes. In-house counsel must demonstrate independence for privilege claims. 5.6 Rules Disallowing Disclosure of a Document See 5.5 Legal Privilege .
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