Western Australian Industrial Relations Commission

What is ‘discovery’?

Discovery is intended to promote a fair hearing for both sides.  It is a process to ensure, as much as possible, that each party has the documents that relate to the matters in question (Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v The Western Australian Hotels and Hospitality Association Incorporated and Burswood Resort Hotel & Others (1995) 75 WAIG 1801, 1805).  Documents are discoverable whether they support a party’s case or not.  Discovery helps to avoid surprise, puts parties on an equal footing, and helps to highlight the issues in dispute between the parties.  Either party can seek discovery of documents from the other party.  That is, an employer can seek discovery from an employee, and an employee can seek discovery from an employer.  Documents discovered are not necessarily provided to the Commission.  The parties each choose to put to the Commission those documents which support their case or undermine the other party’s case. 

Informal discovery

The Commission will often ask the parties to engage in ‘informal discovery’.  That means that the parties will discuss which documents they are able to provide to each other.  They then provide each other with copies of the documents by agreement.  Once a party has received a document, it is up to them to decide whether they use it in their case. 

Parties may prefer this process because they do not have to comply with strict deadlines, and they have greater control over the types of documents they can exchange. 

If this process breaks down, a party may apply for orders to force discovery of documents.  This becomes ‘formal discovery’.  The Commission then becomes much more involved in supervising the process. 

Formal discovery

Formal discovery is where the Commission makes orders requiring the parties to provide documents within specified timeframes.  It is good practice to ask the other party for the documents before making a formal application.  The Commission is unlikely to make orders if the party seeking discovery has not asked for the documents first. 

A formal application is made by filing a Form 1A - Multipurpose Form , stating that discovery is sought for a specific class or classes of documents.  A party can request discovery of more than one class of documents in a single application for discovery. 

Considerations

Applications for discovery in the Commission have three main considerations: 

  1. The documents sought must be relevant to a matter in question in the proceedings. To determine the scope of discovery, the scope of matters in question is given a broad meaning.  This means documents are discoverable if they direct a party to a line of inquiry.  However, requests must be reasonable. 
  2. The documents must be in the ‘possession, custody or control’ of the other party.
    • Possession means that the other party owns the document.
    • Custody means that the party physically holds the document, regardless of whether they own the document; and
    • Control means that the party is entitled to obtain the document from someone else.

This means that a party cannot be required to provide discovery of a document which is not in their possession, custody or control. 

  1. The request must be ‘just’. That is, the party applying for discovery must satisfy the Commission that the documents are necessary for the party to have a fair hearing. 

If a document is ‘privileged’, the document does not have to be given to the other party.  The party should still make the other party aware of the document’s existence, by describing it in a general way, but assert that it is privileged.  Commonly this will include ‘legal professional privilege’, which is correspondence between lawyer and client for the purpose of obtaining legal advice. 

There is more information about discovery in Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v The Western Australian Hotels and Hospitality Association Incorporated and Burswood Resort Hotel & Others (1995) 75 WAIG 1801, at page 1805, under the heading ‘General Discovery’. 

 

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Western Australian Industrial Relations Commission
17th Floor
111 St Georges Terrace
PERTH WA 6000

Phone : (08) 9420 4444
Facsimile : (08) 9420 4500
Free Call : 1800 624 263

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