K13.2. Cutting down the scope of the obligation
408. |
It is obviously true that the net thrown by
the Peruvian Guano test is extremely wide. Lord Woolf points out that it
encompasses four classes of document, namely :- |
|
|
|
|
* |
The parties' own
documents: these are documents which a party relies upon in support of his contentions in
the proceedings. |
|
|
|
|
* |
Adverse documents:
these are documents of which a party is aware and which to a material extent adversely
affect his own case or support another party's case. |
|
|
|
|
* |
The relevant documents:
these are documents which are relevant to the issues in the proceedings, but which do not
fall into categories 1 or 2 because they do not obviously support or undermine either
side's case. They are part of the "story" or background. The category includes
documents which, though relevant, may not be necessary for the fair disposal of the case.
It is fair to say that this category produces proportionately the greatest number of
documents disclosed and to least effect. |
|
|
|
|
* |
Train of inquiry
documents: these are the documents referred to by Brett LJ in the Peruvian Guano case.
(Note 359) |
|
|
409. |
The main change proposed by Lord Woolf was to
limit the obligation to disclosing documents in the first two categories, subject to the
court ordering wider disclosure if demanded by the circumstances of the case. (Note
360) A similar approach,
abandoning Peruvian Guano and adopting a narrower test of relevance, has been
implemented or advocated in many jurisdictions, including Queensland,(Note 361) Western Australia (Note 362) and the Australian Federal Court. (Note 363) Having reviewed the position in other states, Sallmann and Wright conclude that
"discovery is too important to be abolished" but that in Victoria, as elsewhere
:- |
|
|
|
|
"...... it needs
more effective control and that on that basis Peruvian Guano has outlived its
usefulness as the general test. It should be replaced by the 'direct relevance' test. The
courts should probably retain a residual discretion to enlarge the ambit of discovery
where necessary." (Note 364) |
Notes
359 |
WIR, p 168, §22.
<back> |
|
|
360 |
WIR, p 170, §32; WFR,
p 125 . <back> |
|
|
361 |
GTC, 109; under the
Uniform Civil Procedure Rule 211, adopting the test of "direct relevance".
<back> |
|
|
362 |
GTC, p 109-110, citing
the LRCWA Consultation Paper on Discovery (December, 1998) which proposes that discovery
"should be confined to documents that are directly relevant to the issues in dispute,
subject to the Court having a residual discretion to enlarge the ambit of discovery where
thought necessary." <back> |
|
|
363 |
GTC, p 111-2; ALRC No
89, p 417, §6.69. <back> |
|
|
364 |
GTC, pp 112-3. <back> |
|