McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd (No 1)

In the matter of McConnell Dowell Constructors (Aust) Pty Ltd versus Santam Ltd (No 1), the Supreme Court of Victoria was tasked with overseeing the discovery of documents in a substantial document case. The dispute arose from a complex commercial matter involving significant volumes of data. The parties sought guidance on the use of technology-assisted review (TAR) in managing the discovery process. The court was called upon to decide whether the use of TAR was appropriate and to determine the procedures for its implementation.

The legal issues before the court involved the interpretation and application of Supreme Court (General Civil Procedure) Rules 2015 (Vic) Order 50, which governs the appointment of special referees in complex cases. Specifically, the court had to consider the role of the special referee in facilitating the discovery process, particularly in relation to the use of predictive coding technology for document review. The court also had to address whether the orders made by the special referee should be adopted by the court, and if so, under what circumstances.

The court held that the special referee's role was to facilitate the discovery process in a manner that was efficient and just, rather than conducting an adversarial process. The court emphasised the importance of the special referee working with the parties to reach an agreement on the use of TAR and the procedures for its implementation. The court found that the special referee had acted appropriately in making recommendations based on the parties' discussions and the evidence presented. The court adopted the special referee's report and made orders for the use of TAR in accordance with the recommendations, noting the significant efficiencies that TAR could bring to the discovery process in such a large document case.

In summary, the court confirmed that the special referee's role is to facilitate the discovery process and that the orders made by the special referee can be adopted by the court if they are based on a proper consideration of the evidence and the parties' discussions. The court also endorsed the use of TAR as a means of efficiently managing the discovery of documents in large document cases. The court's orders included directions for the parties to comply with the special referee's recommendations regarding the use of TAR, subject to any further directions the court might give in the future.