I OVERVIEW

Litigation in Australia is conducted in different federal, state and territory courts depending on the nature of the matter at hand and the relevant laws in question. Practice and procedure and, consequently, approaches to electronic discovery (e-discovery) vary between those courts; however, generally, the exchange of electronically stored information (ESI) is commonplace in the discovery process.

The use of technology to assist with review has been prevalent in most Australian jurisdictions for several years and key word searching, email threading and deduplication are accepted practices. The use of more advanced analytical tools, such as predictive coding, is still developing but has been agreed to by parties and courts as an appropriate method to review and produce documents. The approach to ESI has developed through a combination of practice, case law and adjustments to rules and procedure.

In the first instance, the cost of discovery (or disclosure) is generally borne by the party making the discovery; however, in some cases, an order may be made that a party requesting discovery pay for some or all of the estimated costs of discovery in advance, or give security for the payment of the cost of discovery.2 Depending on the outcome of the litigation, costs may be awarded against a losing party, requiring it to reimburse the party making discovery for some or all of the costs associated with the discovery.

Sources of law and regulation governing discovery

The Federal Court of Australia (the Federal Court) has original jurisdiction to hear both civil and criminal matters relating to Commonwealth law (although certain criminal matters are still heard by state courts) at the federal level.3 The Federal Court also has an appeals court, the Full Court of the Federal Court of Australia, which has appellate jurisdiction in relation to matters heard in its original jurisdiction.

The Federal Court of Australia Act 1976 (Cth), the Federal Court Rules 2011 (Cth) and practice notes issued by the Court are the primary source of requirements relating to practice and procedure in that jurisdiction.4 In regard to discovery and, in particular, e-discovery, the primary sources of rules are:

  1. Part 20 of the Federal Court Rules 2011 (Cth);
  2. Section 10 of the Central Practice Note: National Court Framework and Case Management; and
  3. the Technology and the Court Practice Note (GPN-TECH).5

State and territory courts handle matters relevant to the laws in each of those jurisdictions. In each state and territory, the highest court is the supreme court but the structure of lower level courts vary. For example, in New South Wales, the court structure consists of three tiers: the Local Court, the District Court and the Supreme Court. The supreme court in each state or territory generally has a trial division with original jurisdiction for matters that reach a certain threshold (e.g., reflecting the monetary value of the issue in dispute or the seriousness of the offence), as well as an appeals division with appellate jurisdiction for matters from its own trial division and lower courts.

Like the Federal Court, practice and procedure (including for discovery and e-discovery) in most state and territory supreme courts is governed by a set of rules in combination with practice notes and directions issued by the relevant court. In most cases, the rules applicable to civil matters differ from those applicable to criminal matters. In several states and territories, in the civil jurisdiction, a uniform set of rules has been adopted to streamline practice and procedure.6

The High Court of Australia is the highest court in Australia and it has original jurisdiction to hear matters related to the Australian Constitution and appellate jurisdiction to hear matters from the appellate courts at the federal, state and territory level. The High Court Rules 2004 primarily govern procedure in that court.

This chapter focuses on e-discovery and information governance practices in the Federal Court and highlights particular points of difference or interesting approaches in the supreme courts of the states and territories. It does not consider all differences between the various supreme court jurisdictions nor address lower-level courts in states or territories. As practice and procedure differ between courts across Australia, care should be taken to consider the applicable legislation, rules and guidance for the court in which a party is appearing.

II YEAR IN REVIEW

There have not been any significant case law developments in the past 12 months that relate to e-discovery or ESI. The most significant recent case occurred in 2016 and involved the Victorian Supreme Court's approval of predictive coding as part of a party's reasonable searches when giving discovery.7

While the approach taken by practitioners to ESI is well developed in all jurisdictions, court guidance on how parties should approach e-discovery and ESI is progressively catching up with practice in the legal industry. For example, the Australian Capital Territory (ACT) and Queensland Supreme Courts have recently updated their guidance in this area.

In the ACT, Practice Direction No. 3 of 2018 took effect on 1 January 2019. Paragraphs 14 and 15 of the Direction deal with e-discovery in civil proceedings and suggest that parties should give early consideration to formulating a discovery plan that addresses, among other things, 'the search/review process and the use of procedures to remove repeated or duplicate content' and exchanging documents 'having regard to the importance of preserving original metadata'.

In Queensland, Practice Direction No. 18 of 2018, titled 'Efficient conduct of civil litigation', was published on 17 August 2018. The direction requires parties 'to confer and agree a basic plan for the management of documents'8 and includes a sample form for such a plan in an appendix. The sample plan suggests that deduplication and the use of key word searches to identify relevant documents should be considered.9

III CONTROL AND PRESERVATION

i Control

The Federal Court Rules 2011 (Cth) specifically state that 'document' includes the definition in the Evidence Act 1995 (Cth) 'and any other material, data or information stored or recorded by mechanical or electronic means'.10 While the same definition is not included in all legislation and rules, it is generally accepted practice that electronically stored documents are caught by the terms 'document' and 'any record of information'. A document must be (or have been) within a party's control to be discoverable.11

While the precise wording varies between states, in most jurisdictions this means that a party must disclose a document if it is (or was) in their possession, custody or power.12 Generally, for the purposes of discovery, 'custody' refers to the actual holding of the document,13 'possession' means the physical holding of the document pursuant to a right of its possession (as in the case of an agent or bailee) and 'power' is understood as an enforceable right to obtain possession or control from the person who has custody over it.14

In the context of ESI, this raises unique issues, for example, where a document is stored on the server or database of a third-party provider, a party may not physically hold the information that is sought. However, as noted above, the obligation to provide discovery extends to documents over which a party has power or custody, and if a party has a legal right to obtain the ESI from its third-party provider, it will have the requisite control for the purposes of discovery.

ii Preservation

There is a myriad of obligations to retain information and documents under federal and state legislation. These obligations are sourced from a range of statutes and apply to information irrespective of its possible or likely use in a litigious or regulatory matter. For example, Section 286 of the Corporations Act 2001 (Cth) requires financial records of a business to be kept for at least seven years after the transactions covered by the records are complete and Section 535 of the Fair Work Act 2009 (Cth) requires employers to make and keep employee records for seven years.

In a litigious context, it is an offence to knowingly destroy a document or any thing that is or may be required in evidence in a proceeding in the federal jurisdiction with the intention of preventing it from being used in the proceeding.15 Similar offences exist in most jurisdictions.16 In each jurisdiction, the terms of relevant provisions are generally broad enough to capture ESI.

It is also an offence to engage in conduct that results in the concealment, destruction, mutilation or alteration of a book relating to any matter that the Australian Securities and Investments Commission (ASIC) is investigating or is about to investigate.17 Similar provisions exist with respect to ASIC, the Australian Prudential Regulation Authority and the Commissioner of Taxation in the Superannuation Industry (Supervision) Act 1993 (Cth).18

In addition to these statutory provisions, at common law, destruction of documents prior to the commencement of litigation may attract a sanction if it amounts to an attempt to pervert the course of justice or contempt of court.19 Common law principles also provide that, where a party has destroyed documents before the commencement of the proceeding to the prejudice of the party alleging, the court may draw an adverse inference.20

As such, if it is known or reasonably anticipated that any regulator is about to commence an investigation or that a third party is about to commence litigation, all reasonable steps should be taken to preserve information that might be relevant to the regulator's investigation or the anticipated proceedings. This is commonly referred to as instituting a 'legal hold'.

While intention is key to the applicable offences, because the terms of the offences are broad (e.g., relating to anything that 'may be required in evidence'), there is a risk that the threshold will be satisfied where an individual or organisation considers that a matter, if known to a regulator or third party, might have a reasonable likelihood of being investigated or litigated (although there has been no judicial consideration of this point). In these situations, it may also be prudent to institute a legal hold to retain potentially relevant documents even if, in the case of a regulatory matter, the organisation is unable to itself determine whether a breach has occurred.

iii Sanctions

In the federal jurisdiction, the offence of destroying evidence can attract a maximum penalty of up to five years' imprisonment or a fine of up to A$300. For corporations, the maximum penalty available is A$1,500.21 In New South Wales, the equivalent offence can attract a maximum penalty of up to 10 years' imprisonment for individuals and A$220,000 for corporations.22

A person who attempts to pervert the course of justice may also be liable to imprisonment. For example, in the federal jurisdiction, a person may be imprisoned for up to 10 years or be fined up to A$10,500. For corporations, the maximum penalty available is A$52,500.23 In New South Wales, penalties may be up to 14 years' imprisonment for individuals and a fine of A$220,000 for corporations.24

IV REQUESTS AND SCOPE

In all jurisdictions, discovery is managed by the different case management systems in operation in each court, and parties (and their lawyers) are under a duty to assist the court to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible.25 However, the proliferation of ESI has magnified the complexity and cost of document production, often accounting for a large portion of the total cost of litigious or regulatory matters.

In practice, this means that courts encourage parties to limit the scope of discovery and disclosure requests. For example, discovery in the Federal Court is permitted only with the court's leave and will generally only be ordered if a party can demonstrate that it will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible.26

In all jurisdictions, courts require or encourage parties to meet and agree upon a discovery plan and document management protocol to deal with ESI. This means that litigants must undertake strategic thinking at the outset, analysing the potential cost of e-discovery, the options for controlling those costs and the process that best achieves proportionality. This is accounted for in a substantial body of practice notes in which the federal, state and territory courts provide guidance on court procedures and rules relating to discovery.

By way of example, the Federal Court specifies the following in the GPN-TECH:

  1. Before the court can consider making an order for electronic discovery, 'the parties will be expected to have discussed and agreed upon a practical and cost-effective discovery plan having regard to the issues in dispute and the likely number, nature and significance of the documents that might be discoverable'.27
  2. '[A]ny discovery plan and document management protocol considered by the parties must be proportionate to the nature, size and complexity of the case and should not amount to an unreasonable economic or administrative burden on the parties or the Court'.28
  3. The Court is developing a template standard document management protocol to summarise 'the terms under which information may be electronically exchanged between parties'.29 The protocol may also include information in relation to 'reviewing and processing documents, including what methods may be used, such as keyword searches, predictive code, de-duplication of documents and email threading'30 (some of these methods are discussed further in Section V.i). The standard document management protocol has not yet been finalised but current practice is to use the default document management protocol formulated in accordance with a Federal Court practice note that preceded the GPN-TECH.31

There are two main types of discovery in Australia:

  1. 'general' or 'standard' discovery and disclosure where a party, after reasonable searching, discovers or discloses documents in its possession, custody or power that are 'directly relevant' to the issues in dispute; or
  2. discovery or disclosure that is broader or narrower in scope, such as discovery or disclosure limited to categories of documents, with the categories agreed by the parties, or ordered by the court in the absence of agreement.

In practice, a party must only give discovery of documents that are found as a result of a reasonable search. When considering what constitutes a reasonable search, a party must have regard to:

  1. the nature and complexity of the proceeding;
  2. the number of documents involved;
  3. the ease and cost of retrieving a document;
  4. the significance of any document likely to be found; and
  5. any other relevant matter.32

In the context of ESI, this will include considering where the documents are located or held, how they are stored and how they may be retrieved.

A further issue that may arise when discovering ESI is what metadata associated with documents should be discovered. Metadata normally attaches to files when they are in 'native format' (the original, default or proprietary file format that an application reads in); however, discovery by electronic exchange is usually by way of foreign formats (e.g., PDFs, which are often referred to as images). In practice, while parties are not generally required to produce documents in their native format, it is common for some metadata associated with a document (file metadata) and metadata associated with the system the file was extracted from (system metadata) to be processed and exchanged alongside the PDF image of a document. For example, it is usually expected that at least the document date, title, email subject and email parties will be exchanged. The scope of metadata required to be produced will depend on the protocols established (and mutually agreed) between the parties.33

Courts can also compel the disclosure of metadata or native documents if the content of the metadata associated with the relevant documents is relevant to the issues in dispute.34 For instance, the parties may disagree on:

  1. which record is the final version of a document;
  2. when an email was sent or received;
  3. whether a document was copied or modified; or
  4. who wrote and commented on a document.35

In a regulatory context, Australian regulators are increasingly requesting that native files and metadata be provided as part of document productions.

V REVIEW AND PRODUCTION

i Advanced analytical tools

Australian law firms and document review providers have been utilising advanced analytical tools for several years and there are a number of different technologies that can be used to create efficiencies in the document review process. Technology-assisted review (TAR) ranges from less sophisticated tools (e.g., using key word searches to limit potentially relevant documents) to machine learning processes (e.g., identifying documents that may be discoverable based on a small subset of material that has been classified as discoverable by a lawyer, often referred to as predictive coding).

In most jurisdictions, legislation provides that the overarching purpose of civil practice and procedure provisions is to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible (see Section IV).36 Consistent with this purpose, courts in most jurisdictions promote and encourage the use of technology in the discovery process to facilitate efficiency. For example, the Federal Court has indicated a general willingness to utilise technology in the litigation process, stating that it will have an 'open mind' when it comes to rapidly changing technologies to assist in understanding key documents and minimising the document review process'.37 The Court's practice direction implicitly endorses the use of predictive coding if both parties agree, suggesting that document management protocols should set out the parties' agreement with respect to reviewing and processing documents, including methods of review such as predictive coding.38

In 2016, the Victorian Supreme Court considered the use of predictive coding in a case involving 1.4 million documents that were identified as potentially relevant to a proceeding. The Court noted that traditional manual discovery was not likely to be cost-effective or proportionate and asked a 'special referee' to advise as to an appropriate process to adopt for discovery. The Court ultimately approved the special referee's recommendation to use predictive coding.39 While there is scant judicial consideration of predictive coding in Australia, further developments are expected in this area as the technology becomes more sophisticated and courts seek to promote efficiency.

In any case, parties should disclose and agree to the use of any advanced analytics as part of the general obligation to 'meet and confer' and develop a protocol or plan for the exchange of ESI prior to commencing the discovery exercise (as discussed in Section IV). The Federal Court, ACT Supreme Court, Queensland Supreme Court, South Australian Supreme Court and Victorian Supreme Court rules and practice notes contemplate that the protocol should address the process for search and review of documents, including what methods might be used in that process.40 Following the aforementioned case, of all the jurisdictions, the Victorian Supreme Court has dealt most comprehensively with the use of TAR. Practice Note SC Gen 5, Technology in Civil Litigation goes so far as stating that:

In larger cases, technology assisted review will ordinarily be an accepted method of conducting a reasonable search in accordance with the Rules of Court. It will often be an effective method of conducting discovery where there are a large number of Electronic Documents to be searched and the costs of manually searching the documents may not be reasonable and proportionate. In such cases, the Court may order discovery by technology assisted review, whether or not it is consented to by the parties.

The Practice Note goes on to discuss possible systems that might be used and referred to in such a protocol, including:

  1. a continuous active learning protocol (using a constantly changing body of documents that are used to train the TAR algorithm);
  2. a simple active learning protocol (using statistical samples, including control sets or random samples, etc.); and
  3. a simple passive learning protocol (using other recognised statistical methods).41

Despite positive developments in the use of TAR in discovery, because approaches in jurisdictions may differ, caution should be exercised before assuming that its use in the search and review process will be acceptable without express judicial consent. Parties should consult relevant practice notes and court rules. While the use of commonly used technology review tools (such as key word searches and deduplication) will generally be acceptable with agreement between the parties, it may prudent to tread more carefully with respect to more advanced tools such as predictive coding. Similarly, when producing documents to a regulator, the use of TAR (including less sophisticated tools such as key word searches) should be discussed and agreed to with the regulator.

ii Privilege and other concerns that may arise during production

A party is not required to produce a document that is privileged.42 However, if a party discloses a privileged document to a third party, that party may be taken to have waived privilege if the disclosure of the document to the third party is inconsistent with the maintenance of the confidentiality that the privilege is intended to protect.43

Inadvertent disclosure of privileged information is an increasing risk as the volume of electronic documents to review and consider increases. However, inadvertent disclosure of privileged information will not always amount to waiver, particularly if it occurs during a court-ordered process (such as discovery), and the party acts promptly upon realising their error.44 Australian legal practitioners also have an ethical obligation not to misuse documents that have been inadvertently disclosed by another party.45 Accordingly, in Expense Reduction v. Armstrong,46 the High Court determined that privilege had not been waived in documents that were inadvertently included in a list of documents and produced electronically on disks.47

However, waiver will be imputed when the actions of a party are plainly inconsistent with the maintenance of the confidentiality of which the privilege is intended to protect.48 This means that electronic documents must be reviewed diligently to mitigate the risk of inadvertent disclosure and claims of imputed waiver.49

In the context of large amounts of ESI, a diligent review of all materials for privilege can be challenging, and sampling is a method that has been used occasionally in different jurisdictions to determine the validity of claims of privilege. For example, in Traderight (NSW) Pty Ltd v. Bank of Queensland Ltd (No. 16),50 a privilege dispute involving 1,061 documents, the judge reviewed a sample of 30 documents and upon finding that a handful of them were arguably not privileged, dismissed the plaintiff's motion.

In some jurisdictions,51 as part of a broader discovery plan, parties are required to agree upon the treatment of privileged documents (including any arrangements to claw back documents where inadvertent disclosure occurs).

Aside from privilege, a party does not have a general right to redact documents on the basis of irrelevance or confidentiality.52 In some circumstances, commercially sensitive information, confidential information or personal information (see Section VI) may be redacted. In the Federal Court, a party must seek agreement from the other party or relief from the Court before redacting a document that it is otherwise required to be produced.53 However, in some jurisdictions (e.g., in the Supreme Court of Victoria), a party can redact documents on a basis other than privilege if it can justify the redactions.54 If a dispute arises about the appropriateness of the redactions, the Court has the power to inspect the discovered documents in unredacted form.55

iii Time frames for discovery

Discovery generally occurs after the close of pleadings (that is, after the filing and service of a statement of claim, defence and any reply, counterclaim or defence to counterclaim).56 Although court orders for discovery are common, as noted in Section IV, not all courts permit discovery by way of right.

Once an order for discovery is made, a party must serve on the requesting party a list of documents within the period specified under the rules (often within 28 days), or within such other period as the court order may provide.57

iv Challenging discovery

If a party does not comply with a court order for discovery, another party may apply for an order (1) that a step in the proceeding be taken within a specified time, (2) that the proceeding be stayed or dismissed in the case of a defaulting applicant, or (3) giving judgment against a defaulting respondent. The court may make any order that it considers appropriate in the interests of justice, including orders punishing a party for contempt.58

The Federal Court has broad powers to address non-compliance with orders for discovery and may make orders that:

  1. dismiss the proceeding in whole or part;
  2. strike out, amend or limit any part of a party's claim or defence;
  3. disallow or reject any evidence;
  4. award costs against a party; or
  5. order that costs awarded against a party are to be assessed on an indemnity basis or otherwise.59

This is reflective of the approach taken in other jurisdictions, which all provide that a court may make a remedial order either under the relevant procedural rules or in its inherent jurisdiction.60

VI PRIVACY ISSUES

Under privacy laws, certain organisations have obligations not to use or disclose personal information for a purpose other than the purpose for which it was collected, unless an exception applies.61 For example, where the individual concerned has consented to the use or disclosure of the information or the use or disclosure is required under an Australian law, or court or tribunal order.62

For the purposes of these laws, personal information includes an individual's name, signature, address, email address, telephone number, date of birth, medical or other records and commentary or opinion about that person.63

It is important to be mindful of privacy obligations when undertaking discovery, particularly of ESI. For example, copies of emails and their attachments may contain personal information in the form of the sender's and recipient's names and email addresses.

The use and disclosure of personal information is permitted where an organisation is 'required' under an Australian law or court or tribunal order to handle information in a particular way and 'cannot choose to act differently'.64 Accordingly, if a court has made an order for discovery that requires disclosure of documents, the disclosure of documents containing personal information in compliance with this order is permitted by the Privacy Act 1988 (Cth) (the Privacy Act).

However, careful attention should be given to the terms of the order. If an order is framed as requiring discovery of information about certain matters, documents that contain both relevant information and personal information might require a more cautious approach to determine if the personal information is truly covered by the order. If the order is expressed to cover documents, parties may still be able to mask irrelevant personal information contained in the relevant documents but, before doing so, they should consider the procedural rules in the relevant jurisdiction as, generally, parties do not have a right to redact documents purely for irrelevance. For example, in Gray v. Associated Book Publishers (Aust) Pty Ltd,65 the respondents had produced for inspection a number of documents that had been masked on the basis that the respondents owed an obligation of confidentiality to third parties. The Federal Court ordered that the respondents produce unmasked copies of the documents and suggested that the respondents should have first obtained the applicant's agreement to the masking of the portions of their discovered documents, or otherwise sought relief from the Court. Of relevance to the Court's decision was that the information about the third parties 'might throw light' on questions relevant to the applicant's claims. In coming to this conclusion, the court noted that:

A private right of confidentiality in documents may be taken into account in considering whether to order discovery and inspection, although it is right to say that the fact that documents have that character is not usually itself a sufficient reason to deny discovery . . . When a document is shown to be confidential the Courts must balance the effect of its disclosure and of it being withheld from a party to litigation.66

Parties may also disclose information in the context of anticipated or actual proceedings without the existence of a court order. This may be acceptable under the Privacy Act if the disclosure is (1) reasonably necessary for establishing, exercising or defending a legal or equitable claim, or (2) reasonably necessary for confidential alternative dispute resolution processes.67

The 'reasonably necessary' test is an objective test: whether a reasonable person who is properly informed would agree that the use or disclosure is reasonable in the circumstances. It is the responsibility of the entity disclosing the information to be able to justify that the particular use or disclosure is reasonably necessary.68 The collection, use or disclosure of personal information is unlikely to be considered necessary where it is merely helpful, desirable or convenient.69

When disclosing in reliance on these exceptions without a court order, parties should consider whether documents (while relevant themselves) contain any irrelevant personal information (and whether that information must be redacted before being disclosed). It is important to consider whether the disclosure of all the personal information contained in any particular document is 'reasonably necessary' in the circumstances. Redactions may be necessary if that test cannot be satisfied.

VII OUTLOOK AND CONCLUSIONS

It is likely that e-discovery and the use of TAR in Australia will continue on its current trajectory to be a readily accepted and utilised aspect of conducting litigation and regulatory matters. Australian regulators are becoming more innovative and are increasingly investing in technology to assist with their own review of large document volumes produced to them in response to regulatory notices. Following the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry in February 2019, which involved significant productions to that Commission in short time frames, there has been an increase in regulatory requests and the imposition of stricter requirements around document production formats and timelines.

In the coming years, revised guidance from courts on practices for review and production of documents can also be expected. For example, the New South Wales Supreme Court's Practice Note SC Gen 7 on the use of technology has not been updated since 2008.


Footnotes

1 Ross Drinnan and Michael Morris are partners, Samantha Naylor Brown is an associate and Phoebe Boyle is a lawyer at Allens.

2 See Federal Court Rules 2011 (Cth) r 20.13; Civil Procedure Act 2010 (Vic) s 55(4).

3 Although, at the time of writing, the federal government is considering expanding the jurisdiction of the Federal Court, such that it has jurisdiction to hear criminal matters under the Corporations Act 2001 (Cth). Jurisdiction for these matters has historically rested with state courts: Australian government, 'Restoring trust in Australia's financial system: The Government response to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry' (February 2019) 39.

4 There are also specific rules that apply to certain matters, for example, the Federal Court (Corporations) Rules 2000, which contain specific provisions related to corporations matters heard by the court.

5 Federal Court of Australia, Technology and the Court Practice Note, 25 October 2016.

6 See, e.g., the Uniform Civil Procedure Rules 2005 (NSW).

7 McDonnell Dowell Constructors (Aust) Pty Ltd v. Santam Ltd (No 1) (2016) 51 VR 421.

8 Supreme Court of Queensland, Practice Direction No 18 of 2018: Efficient Conduct of Civil Litigation, 17 August 2018.

9 Supreme Court of Queensland, Appendix to Practice Direction No 18 of 2018: Efficient Conduct of Civil Litigation, 17 August 2018, paras 5, 8, 11.

10 Federal Court Rules 2011 (Cth) Dictionary sch 1 (definition of 'evidence').

11 See, e.g., Federal Court Rules 2011 (Cth) r 20.14(1)(c); Uniform Civil Procedure Rules 1999 (Qld)
r 211(1)(a).

12 See Civil Procedure Act 2005 (NSW) s 3 (definition of 'possession'); Uniform Civil Procedure Rules 2005 (NSW) r 21.3(2). Note that in Queensland, a party must disclose a document if it is in their possession or under their control (r 211(1)(a)).

13 See Roux v. Australian Broadcasting Commission [1992] 2 VR 577; Commissioner of Taxation (Cth) v. Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499.

14 Although note that in some jurisdictions, the right may not need to be recognised in law or equity, see Supreme Court Civil Rules 2006 (SA) r 4; Reid v. Langlois (1849) 41 ER 1408; B v. B [1978] 3 WLR 624; Lonrho Ltd v. Shell Petroleum Co Ltd [1980] 1 WLR 627; Psalidis v. Norwich Union Life Australia Ltd (2009) 29 VR 123; Chaudhary v. Bandicoot Group Pty Ltd (No 2) [2018] FCA 420, [38]; Global Investments Ltd v. Babcock & Brown Global Investments Management Pty Ltd; and DIF III – Global Co-Investment Fund LP v. BBLP LLC [2017] NSWSC 729, [73].

15 Crimes Act 1914 (Cth) s 39.

16 See, e.g., Crimes Act 1958 (Vic) ss 254-5; Crimes Act 1900 (NSW) s 317; Criminal Code 1899 (Qld)
s 129; Criminal Law Consolidation Act 1935 (SA) s 243; Criminal Code Act Compilation Act 1913 (WA)
s 132; Criminal Code Act 1924 (TAS) s 99; Criminal Code Act 1983 (NT) s 102.

17 Australian Securities and Investments Commission Act 2001 (Cth) s 67.

18 See Superannuation Industry (Supervision) Act 1993 (Cth) s 286.

19 British American Tobacco Australia Services v. Cowell [2002] VSCA 197, [175]; Palavi v. Radio 2UE Sydney Pty Ltd [2011] NSWCA 264, [174-6].

20 Moody Kiddell & Partners Pty Ltd v. Arkell [2013] FCA 1066, [26].

21 Crimes Act 1914 (Cth) ss 4B, 39. Note that s 4B concerns pecuniary penalties applicable to natural persons and bodies corporate.

22 Crimes Act 1900 (NSW) s 317; Crimes (Sentencing Procedure) Act 1999 (NSW) ss 16–17.

23 Crimes Act 1914 (Cth) ss 4B, 43. Note that s 4B concerns pecuniary penalties applicable to natural persons and bodies corporate.

24 See Crimes Act 1900 (NSW) s 319.

25 For Federal Court proceedings, see Federal Court of Australia Act 1976 (Cth) ss 37(M)–(37M-P); for Victorian Court proceedings, see Civil Procedure Act 2010 (Vic) Part 2.3, which are discussed at s 2.4(a); for NSW proceedings, see Civil Procedure Act 2005 (NSW) ss 56–60; for Queensland proceedings, see Uniform Civil Procedure Rules 1999 (Qld) r 5; and for WA proceedings, see Rules of the Supreme Court 1971 (WA) r 1.4B.

26 See Federal Court Rules 2011 (Cth) r 20.11. Also note that the Court can give directions under r 5.04 defining the issues through pleadings or otherwise (Item 1) and regarding discovery and inspection generally (Item 10).

27 GPN-TECH, para 3.3(a).

28 ibid., para 3.5.

29 ibid,. para 3.6.

30 ibid., para 3.8. Noting that parties may agree to use a different document management protocol (DMP). However, parties must understand the time and cost implications of any DMP they agree to, and subsequently, persuade the court to impose: MHG Plastics Industries Pty Ltd v. Quality Assurance Services Pty Ltd [2004] FCA 105.

31 See Federal Court of Australia, Practice Note CM6 (which is no longer in force) and Federal Court of Australia, Default Document Management Protocol.

32 See Federal Court Rules 2011 (Cth) r 20.14(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) reg 29.01(5); Magistrates' Court General Civil Procedure Rules 2010 (Vic) reg 29.01(1).

33 See, e.g., Supreme Court of New South Wales, Practice Note SC Gen 7: Use of Technology, 9 July 2008, para 12; Supreme Court of New South Wales Equity Division, Practice Note SC Eq 3: Commercial List and Technology and Construction List, 10 December 2008; Supreme Court of Queensland, Practice Direction No. 10 of 2011: Use of Technology for the Efficient Management of Documents in Litigation, 22 November 2011.

34 See, e.g., Jarra Creek Central Packing Shed Pty Ltd v. Amcor Limited [2006] FCA 1802 (application for discovery of nine fields of metadata relating to de-duplication fields denied as information found not to be necessary).

35 See Michael Legg and Lara Dopson, 'Discovery in the Information Age – The Interaction of ESI, Cloud Computing and Social Media with Discovery, Depositions and Privilege' (Research Paper No. 2012-11, University of New South Wales Faculty of Law Research Series, May 2012) 11.

36 See, e.g., Federal Court of Australia Act 1976 (Cth) ss 37M-P; Civil Procedure Act 2010 (Vic) ss 7–27; Civil Procedure Act 2005 (NSW) ss 56–60; Uniform Civil Procedure Rules 1999 (Qld) r 5; and Rules of the Supreme Court 1971 (WA) ord 1, r 4B.

37 See Federal Court of Australia, Technology and the Court Practice Note (GPN-TECH), 25 October 2016, para 2.7(c).

38 ibid., para 3.8.

39 McDonnell Dowell Constructors (Aust) Pty Ltd v. Santam Ltd (No 1) (2016) 51 VR 421.

40 See GPN-TECH, para 3.8; Supreme Court of Victoria, Practice Note SC Gen 5: Technology in Civil Litigation (first revision), 29 June 2018, para 8.7.

41 Supreme Court of Victoria, Practice Note SC Gen 5: Technology in Civil Litigation (first revision), 29 June 2018, para 8.9.

42 See Federal Court Rules 2011 (Cth) r 20.02; Supreme Court (General Civil Procedure) Rules 2015 (Vic) reg 32.02. The Court may inspect a document over which a party has made a claim for privilege (or objects to production on other grounds) in order to determine the validity of the claim (or objection): see, e.g., Supreme Court (General Civil Procedure) Rules 2015 (Vic) reg 29.13.

43 Expense Reduction Analysts Group Pty Ltd v. Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46, [30]-[32]; Mann v. Carnell (1999) 201 CLR 1; [1999] HCA 66 at [29].

44 Expense Reduction Analysts Group Pty Ltd v. Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46, [43], [49].

45 Legal Profession Uniform General Rules 2015 (NSW) r 31.

46 (2013) 250 CLR 303.

47 ibid., 324 [63].

48 ibid., 31 [30].

49 GT Corp Pty Ltd v. Amare Safety Pty Ltd [2007] VSC 123 [8]-12]; LMI Australasia v. Baulderstone Hornibrook [2000] NSWSC 1066 [21].

50 [2013] NSWSC 418.

51 See, e.g., ACT Supreme Court, Practice Direction No. 3 of 2018: Court Technology, 1 January 2019, para 14-5 provides that parties should agree upon a 'discovery plan' where discovery involves more than 500 documents; Supreme Court of Victoria, Practice Note SC Gen 5: Technology in Civil Litigation (first revision), 29 June 2018, paras 8.3–4 provide that where discovery is likely to be more than 500 documents, parties are expected to agree on an effective discovery plan. Meanwhile, in NSW, parties are required to meet and confer to consider whether ESI is to be discovered on an agreed without prejudiced basis: Supreme Court of New South Wales, Practice Note SC Gen 7: Use of Technology, 9 July 2018, para 12.

52 Schütz Australia Pty Ltd v. VIP Plastic Packaging Pty Ltd (No 18) [2013] FCA 407 [25] (McKerracher J), citing Gray v. Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 [14]-[15] (Branson J). In Science Research Council v. Nasse [1980] AC 1028, Lord Wilberforce stated at 1065, 'There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone.' This statement was cited by Spender J in Mackay Sugar Co-operative Limited v. CSR Limited (1996) 137 ALR 183, 187.

53 Schütz Australia Pty Ltd v. VIP Plastic Packaging Pty Ltd (No 18) [2013] FCA 407 [25] (McKerracher J), citing Gray v. Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 [14]-[15] (Branson J).

54 Octagon Inc v. Lleyton Glynn Hewitt & Another [2011] VSC 373 at [32].

55 Supreme Court (General Civil Procedure) Rules 2015 (Vic) regs 29.11; 29.13 (in relation to documents redacted for confidentiality); Evidence Act 2008 (Vic) s 133.

56 Note that Federal Court Rules 2011 (Cth) r 20.13 provides that a party may not apply to court for an order for discovery until 14 days after all respondents have filed a defence or an affidavit in response to the affidavit accompanying an originating application; for the Victorian Courts, see Supreme Court (General Civil Procedure) Rules 2015 (Vic) reg 29.02; Magistrates' Court General Civil Procedure Rules 2010 (Vic) reg 29.02(1).

57 See, e.g., Uniform Civil Procedure Rules 2005 (NSW) r 21.3(3). Meanwhile in Victoria, discovery of documents shall be made within 42 days of service of the notice: Victorian Supreme Court Rules 2015,
reg 29.03.

58 Federal Court Rules 2011 (Cth) rr 5.22, 5.23.

59 See Federal Court of Australia Act 1976 (Cth) s 37P.

60 See, e.g., Civil Procedure Act 2010 (Vic) s 56, Civil Procedure Act 2005 (NSW) s 61; Northern Territory of Australia Supreme Court Rules 2007 (NT) r 24.05.

61 See Australian Privacy Principles (APP) para 6; Privacy Act 1988 (Cth), noting that some organisations, such as certain types of small businesses, are exempt from compliance with the Privacy Act 1988 (Cth).

62 See APP paras 6.1(a), 6.2(b).

63 See Privacy Act 1988 (Cth) s 6 and the Australian Privacy Principle guidelines issued by the Office of the Australian Information Commissioner (the APP Guidelines) at [B.85 to B.90] (https://www.oaic.gov.au/agencies-and-organisations/app-guidelines/).

64 APP Guidelines (n 63) [B.129].

65 [2002] FCA 1045.

66 ibid., [18] (Justice Branson citing with approval the passage from Justice Kiefel in Index Group of Companies Pty Ltd v. Nolan [2002] FCA 608 at [8]).

67 Privacy Act 1988 (Cth) s 16A.

68 APP Guidelines (n 63) [B.108], [6.61].

69 APP Guidelines (n 63) [C.25]. The draft of these guidelines explained that it would be difficult for an APP entity to be satisfied that disclosure was reasonably necessary merely at the request of a third party without a court order. This does not appear in the final APP Guidelines.