DISCOVERY AND DIRECTIONS HEARINGS

Discovery Is a stage of the civil pre-trial process where each party has the opportunity to request documents and additional information that the opposing party has in their possession that are relevant to the facts of the case. Discovery includes ‘discovery and inspection of documents and discovery by written interrogatories or oral examination’. A written interrogatory is a list of questions that the opposing party is asked to answer. During discovery either party can ask to see the following items: electronic information stored on a computer videotape, audiotape, discs photographs contracts maps plans letters receipts.

The purpose of discovery is to: assist parties to prepare for trial facilitate the settlement of the dispute reduce time and expense associated with the trial and settlement of the dispute as documentary evidence has already been seen narrow down the issues in dispute prevent either party from being taken by surprise by evidence at the trial and help ensure the case is determined on merit rather than tactics.

Discovery and FAT unlimited discovery can unnecessarily delay and add to the cost of civil proceedings. Court may order that discovery is not required or place a time limit and restriction on what type of documents can be discovered. The use of technology for electronic storage of and access to documents can also improve the efficiency of the discovery process. More active case management by the courts, including the provision of specialised personnel to assist in resolving discovery issues, and the imposition of more severe sanctions or penalties for discovery abuse could also encourage parties not to deliberately delay discovery.

Directions hearings Designed to encourage parties to reach an out-of-court settlement or, failing this, at least speed up the trial process. A directions hearing is a hearing, usually presided over by a judge, in which the parties to a civil proceeding are given instructions or orders by the court to undertake certain actions that are necessary to prepare the parties for trial. Mediation. The court may also order one party to make certain information, such as electronic documents, available to the other, or order parties to engage in discussion to clarify legal issues prior to trial. ‘at any stage of a proceeding the court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination’.

Notice of trial and pre-trial conference The final step before the trial is a notice of trial that informs all parties that the proceeding is ready for trial. Once the matter has been put on a list for trial, the court may direct the parties to attend a pre-trial conference. The pre-trial conference is then used as another opportunity to settle the matter prior to trial, and, if the matter is not settled, ensure the parties are ready for trial.

The major difference civil and criminal pre-trial procedures the main pre-trial stages that take place prior to a criminal trial (which take place for all serious or indictable offences) include the police investigation, a bail hearing and a committal hearing. Prior to a civil trial, parties engage in pleadings and discovery and can be ordered to attend directions hearings. The main purpose of criminal and civil pre-trial proceedings also differs. Main purposes of criminal pre-trial procedures is to ensure the accused is given a fair and unbiased hearing and treated in a way that upholds the basic right of the accused to be presumed to be innocent until proven guilty, by the prosecution, of the alleged crime. The general right of an accused to remain silent and the general right to bail (unless specific reasons exist for its denial) also aim to uphold this presumption of innocence. By contrast, one of the main aims of civil pre-trial procedures is to encourage the parties to reach an out-of-court settlement prior to the trial An accused cannot resolve their criminal dispute using mediation or conciliation and avoid trial, although they may enter an early guilty plea in an attempt to receive a lesser sentence. An accused may also avoid trial if a magistrate (at a committal hearing) or the Director of Public Prosecutions believes the prosecution does not have sufficient evidence against the accused to support a conviction at trial. Table 9.4 outlines some of the differences between the purposes of criminal and civil pre-trial procedures.