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Evan Whitton
26 June, 2006  
The birdshit precedent

Superabundant discovery was given a huge leg-up by the Peruvian Guano case (1882). Ever since, despite the best efforts of some gallant litigation reformers, seabird excreta has been plopping on the heads of millions of clients

imageIn this short trot round the history and utility of discovery, perhaps the first thing to note is that commercial judges like Ronnie Sackville and Peter Heerey (seen here) might feel more usefully employed in the German system.

Discovery barely exists there. Lawyers for each side put in their most telling documents and, if necessary, the judge sends for more.

Justice David Ipp, BCom, LLB (Stellenbosch), then of WA, said in 1995 that documents “critical to the result of the trial are substantially less than fifty”. The German judge probably ends up looking at 20 or 30 documents, tops.

Compare that with horror stories reported by The Economist in 1992. They merely confirms that the USA is the home of wretched excess, in law no less than war:

  • Discovery accounts for 60 per cent of the time and money spent on US lawsuits.
  • In an IBM cartel suit, discovery took five years and produced 64 million pages of documents.
  • A Lou Harris survey found in 1988: “A big majority of litigators for both plaintiffs and defendants said that discovery is used as a weapon to increase a trial’s cost and delay to the other side (nearly half said lawyers use it to drive up their own charges).”

    That suggests that in civil cases perhaps half US trial lawyers systematically use discovery to thieve from clients and blackmail opponents into dropping off. But that means they are organised criminals. Why aren’t they in prison?

    Happily, Australian litigation lawyers are not like that, and if occasionally they seem to go a bit over the top it is probably because they fear being done for negligence.

    That no doubt explains what happened in a Federal Court case, Trade Practices Commission v Santos Limited and Sagasco Holdings Limited (1993). The ace on discovery, Perth barrister Paul Mendelow, BA LLB (Witwatersrand), notes that Justice Peter Heerey BA LLB (Hons) (Tas), observed:

    “A burgeoning army of lawyers were recruited into … discovering, inspecting, filing, listing, copying, storing, carrying about and otherwise dealing with 100,000 documents … [Junior lawyers] ensnared in the discovery process [said]: ‘I have been Santossed’.”

    imageWhence such superabundance? Mendelow names the guilty man, William Baliol (Birdshit) Brett LJA (1815-99) – (image).

    Brett asserted in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882), that any document is discoverable if it might, directly or indirectly, lead to a “train of inquiry” which might help a lawyer’s case or damage his adversary’s. (Emphasis added.)

    Legislation is not required to deal with that sort of rubbish; it can be excised with a stroke of the pen to the Supreme Court Rules. But most common law judges apparently see nothing wrong with it; seabird excreta has been plopping gently on the heads of millions of clients for more than a century.

    The honour of being the first in the common law world to de-rail the monster goes to Queensland judges and lawyers.

    They did this via a Litigation Reform Commission established by the Goss Labor Government in 1991. Uniquely, some 50 Brisbane judges and lawyers worked for nothing; only a small research staff was paid.

    Appellate judge Geoff Davies LLB (Qld) was chair of the commission in May 1994 when the Supreme Court Rules abolished the Peruvian Guano test and limited discovery to directly relevant documents.

    The commission was winding up to do something about the criminal system when the Goss Government fell in February 1996. This turned out to be tragic for Queensland law; the new (Liberal) AG, Denver (Aptly Named) Beanland, 51, ed. Caboolture High School, abolished the commission on September 10, 1996. In his final report to Aptly on September 26, 1996, Justice Davies tartly observed:

    “Sections of the legal profession have, for some time, expressed opposition to the commission’s work and to the commission … It was inevitable that the commission’s reforms, because they reduced the cost of litigation, would also reduce the amount of money which lawyers would earn for each case.

    “There has also been, it is said, resentment of the commission from within the bureaucracy … No bureaucrat likes to see any part of his department’s budget go to a body over whose members and agenda he has no control.”

    WA lawyers were the next to have a whack at Brett’s nonsense. In 1997, the Liberal Attorney General, Peter Foss QC, gave his Law Reform Commission a huge reference, to review the civil and criminal systems.

    imageThe commissioners were formidable. The chairman, Wayne Martin QC LLB (Hons WA), LLM (Lon), was president of the Bar Association; Robert Cock QC BJuris LLB (WA), was Crown Counsel (seen here on the pillion behind current WA AG Jim McGinty); and Professor Ralph Simmonds LLB (WA), LLM (Toronto) was dean of the law school at Murdoch University.

    They engaged Paul Mendelow to do the work on discovery, and in 1998 they agreed with the conclusion in his paper, Discovery – Should the Whistleblowers Stop the Train of Inquiry?

    “The time has come to abolish the train of inquiry test as formulated in the Peruvian Guano decision.”

    That was seven years ago, but the pen has not yet been taken to the Supreme Court rules; the train chugs doggedly on. Does that mean current judges believe the birdshit test is OK? If so, will abolition require changes to the court’s composition? Will that take a generation?

    Labor’s Jim (The Great) McGinty, 51, BA, BJuris (Hons) LLB (WA), Attorney General and Minister for Justice and Legal Affairs since 2001, appeared to take a step when he put Professor Simmonds, 55, on the Supreme Court in February 2004. And a bigger one when he made Wayne Martin, 53, Chief Justice last month.

    It will be of compelling interest to see when, or if, they can carry the court on discovery and other reforms they recommended in 1999, including putting an end to litigation lawyers’ time-honoured practice of lying in paper pleadings – see Justinian December 14, 2004.


Reader Comments

Posted by: Anonymous
Date: June 29, 2006, 11:15 pm

As a solicitor who has practised in both Victoria and Queensland, I can assure you that the abolition of the Peruvian Guano test makes disclosure much cheaper and quicker, and (quelle horreur) removes one way for a cashed up defendant to string out the litigation process. Disgraceful! This is not the only "innovation" in Queensland's civil procedure rules. For example, in Queensland, a defendant must explain, in its pleading, why it denies or does not admit an allegation. Outrageous! Why should a defendant have to reveal its case before trial? Your with tongue firmly in cheek, A Queensland lawyer
Posted by: Anonymous
Date: July 2, 2006, 10:14 pm

Please note Federal Court Rules have also dispensed with Peruvian Guano.