Melbourne Law School - Theses

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Start date: 1990 × End date: 1999 × Subject: Australia × Subject: Freedom of information × Subject: Civil procedure ×

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    The place of freedom of information legislation in civil litigation : new discoveries - old ways
    Hanlon, Fiona ( 1990)
    In completing one discovery we never fail to get an imperfect knowledge of others of which we had no idea before, so that we cannot solve one doubt without creating several new ones'. Discoveries can be of many kinds; the word is one full of portent. It will be the aim of this paper to review the development and current status of documentary discovery in civil litigation and the impact, both actual and potential, of the introduction of freedom of information legislation on the discovery process as we know it and on the adversary system which is the foundation of the litigative process itself and of which discovery is, in conventional understanding, merely an adjunct. The emphasis will be on civil proceedings, although issues arising from criminal procedures may become relevant. The term discovery will be used in this work to refer to the discovery of documents in civil litigation and not, unless specifically stated, to other discovery devices such as interrogatories or oral examination. The much vaunted and rapidly developing information revolution experienced this century, in conjunction with the increasing complexity of our society and its social and commercial relationships, has,in a manner which lawyers of earlier centuries would never have contemplated, immeasurably increased our reliance on documentary evidence in all forms of civil litigation. We cannot even point to the development of the so called "paperless" office as an indication that our reliance on documentary material will diminish. The expanded definition of "document" to be found in legislation such as the Acts Interpretation Act 1901 (Cth), Interpretation of Legislation Act 1984 (Vic) and in freedom of information legislation indicates that. Yet discovery as we know it is only a recent development when viewed in terms of the history of our legal system, based as it is on English law and procedure. Before examining the more recent developments in discovery and the impact of the freedom of information acts, it is useful to briefly examine the origins and development of the discovery process.