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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> |
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