Directions for pre-trial procedural regimes in the NSW Supreme
Court's Equity Division are changing! The Registrar is altering
consent orders so that evidence is required before discovery. Are
the "rocket docket" concepts about to
hit the Equity Division?
Changes to discovery and exchange of evidence
The rumour mill has been active and we are aware that the
registrars and judges in the Equity Division of the NSW Supreme
Court are currently querying the need for consent orders for
routine discovery in the matters before them. Rather, the
preference and evident case management objective is to get the
evidence on much earlier than before. Indeed, we understand that
the Equity judges hope to avoid making routine orders for discovery
at all, and to this end will seek to ensure that parties to the
litigation prepare and exchange their evidence earlier.
At the least, in our view it looks as though discovery will not
be ordered until the parties have put on their lay evidence which
will have the effect of narrowing the issues and reducing the scope
for discovery if it is ordered at all.
What will this mean for litigation in NSW?
The practical ramifications for parties is that they will have
to attend to their evidence much earlier and without having
reviewed and considered the opposition's documents. Early
exposure of the competing cases is likely to result in an earlier
settlement attempt by negotiation or mediation.
It also means that the court will be considering the
parties' evidence well before trial as it determines the
relevance of discovery parameters by reference to the real case as
exposed by the evidence. Parties will need to ensure the evidence
is admissible, given that early Court consideration of the evidence
and contests on relevance are inevitable.
Cases should be prepared faster and trial dates should come
earlier if the changes are properly embraced by the profession.
Lowering of legal costs by reducing the scope of the case,
documentation and delays should also follow.
A practice note is currently under consideration and is likely
to be issued shortly.
"Rocket Docket" is a colloquialism
often used to describe the Federal Court's Fast Track
Directions List where commercial cases of expected trial length of
five days or less are subject to a tight case management timeline
and the exchange of evidence occurs within a very short time after
the first trial conference (Scheduling Conference).
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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