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JUSTICE LEGISLATION AMENDMENT (DISCOVERY, DISCLOSURE AND OTHER MATTERS) BILL 2014

          Justice Legislation Amendment
         (Discovery, Disclosure and Other
                 Matters) Bill 2014

                          Introduction Print


                EXPLANATORY MEMORANDUM


                                 Clause Notes

                        PART 1--PRELIMINARY
Clause 1    sets out the purposes of the Bill, which are to amend the Civil
            Procedure Act 2010 to provide further case management powers
            in relation to discovery and disclosure and to amend the
            Corrections Act 1986, the Corrections Amendment (Breach of
            Parole) Act 2013, the Crimes Act 1958 and the Serious Sex
            Offenders (Detention and Supervision) Act 2009.

Clause 2    provides that the Bill except Part 2 commences on the day after
            Royal Assent. Part 2 commences a day or days to be proclaimed.
            Part 2 will commence on 31 October 2014 if not proclaimed
            before that date.

         PART 2--CIVIL PROCEDURE DISCOVERY AND
                 DISCLOSURE AMENDMENTS
Part 2 of the Bill aims to ensure that the courts, parties and legal practitioners
are using appropriate tools to reduce the costs and delays associated with the
discovery process, for example by more clearly defining the issues in dispute,
considering document management issues prior to undertaking discovery,
and limiting the scope of discovery requests.

Clause 3    provides that in Part 2 of the Bill the Civil Procedure Act 2010
            is called the Principal Act.




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Clause 4 inserts new definitions into section 3 of the Principal Act as a consequence of new concepts introduced by clauses 5 and 7 of the Bill, including affidavit of document management and statement of issues. Clause 5 inserts new sections 50 and 50A into the Principal Act. New section 50 enables a court to order or direct that the parties consult and prepare a statement of issues that identifies and summarises the key issues in dispute in the proceeding. If the parties cannot agree on the contents of the statement, it may be settled by the court. New section 50A provides that a statement of issues may be used in a proceeding in any manner considered appropriate by the court to further the overarching purpose. The overarching purpose, as set out in section 7 of the Principal Act, is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. The statement of issues provided for by new section 50 may be used in relation to both pre-trial procedures (including for the purpose of discovery of documents) and for the conduct of the proceeding at trial. Subsection (3) provides that a statement of issues does not displace the function of any pleadings in the proceeding, which will continue to define the issues for judicial determination. However, this does not prevent a court from dispensing with pleadings in a specific case pursuant to other powers in the Principal Act or pursuant to the rules of court. Clause 6 amends section 55(2)(c) of the Principal Act, which enables a court to make any order or give any directions limiting the obligation of discovery to a class or classes of documents specified in the order or to documents relating to one or more specified facts or issues in dispute. The clause inserts a new subparagraph (iii) to introduce a specific power for a court to make any order or give any directions limiting the obligation of discovery to some or all of the issues set out in a statement of issues filed in the proceeding. The clause also amends section 55 of the Principal Act by inserting new subsections (4) and (5). New subsection (4) enables a court to order or direct a party to pay a specified amount to another party in relation to the costs of discovery in any manner the court considers appropriate. This may include an 2

 


 

order or direction that a party pay a specified amount in advance of discovery for some or all of the estimated costs of discovery. New subsection (5) enables a court to order or direct that any costs payable under an order made or direction given pursuant to subsection (4) are recoverable as "costs in the proceeding", which means that the costs would be payable as part of the final costs award made in the proceeding. The clause does not limit the courts' discretion to make a different costs order in the proceeding. Clause 7 inserts new sections 55A to 55C into the Principal Act. New section 55A enables a court to order or direct a party to provide to another party all documents in the party's possession or control which relate to the issues in the proceeding. This may include documents that would not ordinarily be required to be discovered in accordance with the rules of court. An order under this section can only be made if all parties consent and if the court is satisfied as to the matters set out in subsection (2), such as that the documents can be identified and located at a reasonable cost and can be identified by a general description or category. This will ensure that the process is only used in appropriate circumstances and that no substantial prejudice will be suffered by the providing party. An order or direction may specify that documents are to be provided in a searchable electronic format if practicable or in another format considered appropriate by the court. Documents that are provided under this section are provided on the basis that privilege is not waived, which preserves privilege claims in respect of the documents. A court may also make any order or direction in relation to the maintenance of privilege claims. Subsection (4) enables the providing party to exclude privileged documents prior to providing the documents, at that party's own expense. Where the providing party elects to exclude privileged documents, the providing party must provide the other party with a list of documents for which privileged is claimed and state the grounds on which privilege is claimed. New section 55B provides that a court may order or direct a party to provide an affidavit of document management, which may include the matters set out in subsection (2). For example, the affidavit may include information about the volume or location of discoverable documents, the way in which those documents are 3

 


 

arranged or stored, or the party's document management processes more generally. This order can be made for the purpose of assisting the court to make appropriate orders or directions in relation to discovery. Subsection (3) clarifies that the affidavit of document management provided under this section does not replace an affidavit of documents, which may still be required to be provided in the proceeding. New section 55C enables the court to make an order for the oral examination of the deponent of an affidavit of document management or another appropriate person who is able to provide information about the matters dealt with in the affidavit. The court may specify the time, place and manner of conducting the examination, who is to conduct the examination and who is to pay for the examination in the first instance. This section does not limit any other powers of a court in relation to oral examination, including section 57 of the Principal Act, which enables a party to seek leave to conduct an oral examination of the deponent of an affidavit of documents prepared by or on behalf of any other party to that proceeding in specified circumstances. Clause 8 inserts a new Division 3 into Part 6.2 of Chapter 6 of the Principal Act (new sections 85 to 87) for the transitional provisions relating to Part 2 of the Bill. New section 85 provides that the amendments made to the Principal Act by Part 2 of the Bill apply to all civil proceedings on and from the date that Part 2 of the Bill commences, regardless of whether the civil proceeding was commenced prior to that date. New section 86 enables a court to make an order to resolve any difficulty which arises as a result of the operation of new Division 3 or any amendments made to the Principal Act by Part 2 of the Bill, such as an unforeseen transitional issue which arises in a specific case. Such an order can be made on the application of a party or on the court's own motion, and has effect despite any provision to the contrary that is made by or under any other Act (excluding the Charter of Human Rights and Responsibilities Act 2006). New section 87 enables the Governor in Council to make regulations containing provisions of a transitional nature. This may include matters of an application or savings nature that 4

 


 

arise as a result of the enactment of Part 2 of the Bill. Regulations made pursuant to this section have effect despite anything to the contrary in any Act (other than the Bill or the Charter of Human Rights and Responsibilities Act 2006) or in any subordinate instrument. Subsection (4) repeals this section on the second anniversary of the date that the section commences, reflecting the transitional nature of this power. Clause 9 amends section 25(1) of the Supreme Court Act 1986, which provides that the Judges of the Court (not including any reserve Judge) may make rules of court for or with respect to specified matters. The clause inserts a new paragraph (ada) to introduce a specific power for Supreme Court judges to make rules of court in relation to discovery and disclosure. Clause 10 amends section 78(1) of the County Court Act 1958, which provides that a majority of judges (other than reserve judges or associate judges) may make rules for all or any of specified purposes. The clause inserts a new paragraph (aaca) to introduce a specific power for County Court judges to make rules of court for the purposes of discovery and disclosure. Clause 11 amends section 16(1) of the Magistrates' Court Act 1989, which provides that the Chief Magistrate together with two or more Deputy Chief Magistrates may jointly make rules of court for or with respect to specified matters. The clause inserts a new paragraph (ada) to introduce a specific power for the Chief Magistrate and Deputy Chief Magistrates to make rules of court in relation to discovery and disclosure. PART 3--OTHER JUSTICE LEGISLATION AMENDMENTS Division 1--Corrections Act 1986 Clause 12 inserts new section 110 of the Corrections Act 1986. New section 110 provides that section 4 of the Judicial Proceedings Reports Act 1958 does not prevent the disclosure or provision of information (including a victim's identity) for the purposes of the administration of the Corrections Act 1986 or an order made under the Corrections Act 1986, an order or sentence made or imposed by a court under the Sentencing Act 1991 or for the purposes of an application for an order under either Act. The exemption would apply to information related to community correction orders, sentences of imprisonment and 5

 


 

parole orders (including assessments of suitability and applications for those orders and, if made, the administration of those orders). For example, it will apply to existing orders, the management of offenders and therapeutic treatment. Division 2--Corrections Amendment (Breach of Parole) Act 2013 Clause 13 amends section 3 of the Corrections Amendment (Breach of Parole) Act 2013 (the Amendment Act). The amendments relate to-- · police powers to arrest, question and investigate a suspect who is in custody for a breach of parole offence and any re-offending; and · the application of certain provisions of the Crimes Act 1958 and Bail Act 1977 regarding a person in custody for a suspected offence in relation to detention for a breach of parole offence. A person may be suspected to be in breach of parole at the same time as or after being arrested by police for another offence. Other arrest powers of members of the police force under law include those exercised pursuant to sections 458 or 459 of the Crimes Act 1958, sections 38, 50 and 124 of the Family Violence Protection Act 2008 and section 15 of the Summary Offences Act 1966. For example, a person is arrested for an offence punishable by imprisonment (such as theft) and is suspected on reasonable grounds of committing a breach of parole offence once the suspect is taken into custody. Under the amendments, a person is liable to being detained pursuant to provisions inserted in the Corrections Act 1986 by the Amendment Act if he or she is arrested by a member of police force using powers under proposed section 78B or any other Act or law as long as the prisoner is suspected on reasonable grounds of committing an offence against proposed section 78A. The suspect who is arrested and taken in custody may be investigated and questioned for a breach of parole offence and any re-offending at the same time. The person cannot be released from custody before either the day on which the Board decides not to cancel the prisoner's parole or the day on which the Board makes an order that the prisoner cease to be detained. Section 464A of the Crimes Act 1958 and section 4 of the Bail 6

 


 

Act 1977, including investigation and custodial powers in those sections, apply accordingly. Subclause (1) amends section 78B(2) of the Corrections Act 1958, as amended by the Amendment Act, to insert a reference to powers of arrest that a member of police force has under any Act or law. The effect of the amendment is that a person may be detained pursuant to section 78B(3) even if the person is arrested by a member of police force using powers under an Act or law other than section 78B(1) if the prisoner is suspected of committing an offence against section 78A. Subclause (2) amends proposed section 78B(3) of the Corrections Act 1986 in the same way that subclause (1) amends section 78B(2). The effect of the amendment is that the mandatory detention provisions in section 78B(3) apply to the person even if he or she was arrested by a member of police force under another Act or law if the prisoner is suspected of committing an offence against section 78A. Subclause (3) inserts proposed section 78B(5) of the Corrections Act 1986. The new provision provides that if a person was arrested under any Act or law, nothing in section 78B prevents the continuation of the person's detention for which the person arrested under the provisions of the Crimes Act 1958 or the Corrections Act 1986. The effect of the amendment is that the person cannot be released from custody until any detention authorised by law has been completed. For example, the Board may decide not to cancel parole or decide that the prisoner should cease to be detained. This decision or order may be made before a reasonable time has elapsed in respect of a criminal investigation or questioning of that person. In these circumstances, police may continue to lawfully detain in custody and investigate the person for the purpose of deciding whether to take the person before a bail justice or a court or release them (on summons or unconditionally) in accordance with Part III of the Crimes Act 1958. Subclause (4) inserts a note at the foot of proposed section 78C. Subclause (5) substitutes proposed section 78D. Proposed section 78D(1), (2) and (3) as substituted provide that if a person is detained due to an alleged breach of parole, a decision or order under section 464A(1) of the Crimes Act 1958 or section 4 of the Bail Act 1977 to release or release on bail that 7

 


 

suspect is subject to a condition that the prisoner must not be released or released on bail before the either the day on which the Board decides not to cancel the prisoner's parole or the day on which the Board makes an order that the prisoner cease to be detained. That is, the prisoner is not released or released on bail unless and until the Board deals with the prisoner's detention by deciding whether or not to cancel parole or order that the prisoner cease to be detained. Section 464A of the Crimes Act 1958 and section 4 of the Bail Act 1977, including investigation and custodial powers in those sections, apply accordingly. Proposed section 78D(4) as substituted provides that an investigation or questioning by a member of the police force under section 464A of the Crimes Act 1958 of a prisoner detained under section 78B(2) or 78B(3) or under an order made under section 78C(1)(a) may continue for a reasonable time after the prisoner is detained even if the Board cancels the prisoner's parole during that time. If a parolee has parole cancelled, ordinarily a police officer would be required to obtain court permission under section 464B of the Crimes Act 1958 to question or investigate them because cancellation of parole immediately results in the person returning to serve their original prison sentence for which they were paroled. This amendment deals with the circumstance where the Board cancels parole during a police investigation or questioning of a person for the breach of parole offence and any re-offending. If parole is cancelled, police still have a reasonable time to complete the investigation or questioning and without the need to obtain court permission. For example, parole may be cancelled when the police are travelling with the suspect for the purpose of identifying the location of a crime scene or a piece of evidence. In such circumstances, the police may complete the investigation or questioning until a reasonable time has elapsed. Proposed section 78D(5) as substituted provides that section 464B of the Crimes Act 1958 does not apply in relation to the prisoner detained until the reasonable time referred to in section 78D(4) has elapsed. Ordinarily a police officer would be required to obtain court permission under section 464B of the Crimes Act 1958 to question the person detained as they are a prisoner. The effect of the amendment means if parole is cancelled during an investigation or questioning, police have a 8

 


 

reasonable time to complete that investigation or questioning into the suspect who is in custody in relation to the breach of parole offence and any re-offending without the need to obtain court permission under section 464B. Proposed section 78D(6) inserts a definition of the relevant day for the purposes of proposed section 78D. This definition is necessary for the operation of proposed section 78D(1), (2) and (3). Proposed section 78D(7) provides that the matters set out in section 464A(4) of the Crimes Act 1958 may be considered when determining what constitutes a reasonable time for the purposes of section 78D(4) and (5). Division 3--Crimes Act 1958 Clause 14 inserts a note at the foot of section 464A of the Crimes Act 1958. Clause 15 inserts a note at the foot of section 464B of the Crimes Act 1958. Division 4--Serious Sex Offenders (Detention and Supervision) Act 2009 Clause 16 inserts new section 192A of the Serious Sex Offenders (Detention and Supervision) Act 2009 (SSODSA). New section 192A provides that section 4 of the Judicial Proceedings Reports Act 1958 does not prevent the disclosure or provision of information (including a victim's identity) for the purposes of the administration of the SSODSA or an order made under the SSODSA or an order or sentence made or imposed by a court under the Sentencing Act 1991 or for an application for an order under the SSODSA or the Sentencing Act 1991. The exemption would apply to information related to the administration of community correction orders, sentences of imprisonment, parole orders and orders made under the SSODSA (including assessments of suitability and applications for those orders and, if made, the administration of those orders). For example, it would apply to existing orders, assessments as to whether such orders should be applied for and therapeutic treatment of offenders subject to those orders. 9

 


 

PART 4--REPEAL OF AMENDING ACT Clause 17 repeals the Bill on 31 October 2015. The repeal does not affect the continuing operation of the amendments made by the Bill (see section 15(1) of the Interpretation of Legislation Act 1984). 10

 


 

 


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