Australia: Discovery won't be a matter of course in NSW Supreme Court

Last Updated: 28 April 2012
Article by Sid Wang and Julia Virgo

Most Read Contributor in Australia, October 2017

Key Points:

A clear objective is to radically reduce the need for the court to make discovery orders and end parties' expectations that a routine order for discovery will be made before evidence is served, or at all.

Discovery will be much harder to get in NSW's Equity Division and parties will have to serve their evidence before any order for discovery, since the Practice Note, Disclosure in the Equity Division SC Eq 13, commenced on 26 March 2012.

This follows a recent trial in the Supreme Court in which the Commercial List judges directed parties to litigation to serve evidence before seeking a discovery order.

The new Practice Note has formalised this, reversing the normal timeline of litigation in which parties usually serve their evidence after the discovery process. A clear objective is to radically reduce the need for the court to make discovery orders and, moreover, end parties' expectations that a routine order for discovery will be made before evidence is served, or at all.

What will be the effect on litigation in New South Wales?

Changes to discovery and exchange of evidence orders

Parties who run their proceedings in the Equity Division – that includes the Commercial List, the Technology and Construction List, the Corporations List and Revenue List (amongst others) – will have to prepare and exchange their evidence early.

If parties consider that they will need an order for "disclosure" they must apply to the court and provide evidence of "exceptional circumstances necessitating disclosure". There will need to be compelling reasons why classes of documents need to be disclosed in order to resolve the "real issues in dispute in the proceedings", along with evidence of the likely cost of the "disclosure" sought.

We understand that disclosure will only be ordered if the parties are able to satisfy the threshold test justifying its need, and not as a matter of course. The Practice Note concept of disclosure is sufficiently broad to include both the discovery process and the subpoena for production of documents process. Parties will need to seek leave of the court to issue a subpoena before evidence is served.

Even if disclosure is ultimately ordered, it will only happen after the parties have put on their evidence, which will likely (if attended to properly) have the effect of narrowing the issues in dispute and thereby reducing the scope for disclosure.

The Practice Note does not distinguish between lay and expert evidence; we now understand that the intention is that both lay and expert evidence is to be served.

What will this mean for existing cases?

The new Practice Note applies to all new matters listed as and from 26 March as well as to those matters already on foot. That implies that where existing cases are already subject to case management orders, for example, under the Commercial List case management provisions, parties should expect some re-consideration of those orders in line with the new provisions for disclosure under SC Eq 11.

In our view, where a matter is well-advanced and discovery orders already provided for, it is extremely unlikely that those orders will be reviewed. In matters where discovery has not yet been embarked upon, parties should expect to have to address the need for a disclosure order and be prepared to serve their evidence earlier as will be directed by the relevant List judge and with reference to SC Eq 11.

What will this mean for litigation in NSW?

There will be several practical results of these changes.

First, parties will have to attend to the preparation of their lay and expert evidence much earlier, and without having reviewed and considered the opposition's and third parties' documents. The alternative is to apply for discovery of specific documents rather than categories of documents, as the court will not wish to neuter the new Practice Note. The same applies to applications for leave to issue subpoenas, which leads to the second result.

Under Part 33 of UCPR, subpoenas do not always require the leave of the court, and there is often a forensic advantage to issuing a subpoena before discovery to get relevant third parties' documents which can assist in driving what categories of documents are sought by way of discovery. This forensic advantage will be lost, as it seems clear that parties will now need to seek leave of the court before issuing a subpoena if they wish to do so before having served their evidence in the Equity Division.

Thirdly, an earlier exchange of evidence will lead to the Court considering the parties' evidence well ahead of trial as it seeks to determine the relevance of discovery parameters by reference to the real issues as exposed by the evidence. Parties will need to ensure their evidence is admissible, given that early Court consideration of the evidence and contests on relevance are inevitable. Court contests on what categories of documents must be disclosed are inevitable and affidavits deposing to the need for such documents may well be required if the need is not self-apparent.

Fourthly, early exposure of the competing cases in evidence is in turn, likely to lead to earlier settlement attempts through negotiation or referral to mediation which will lead to the costs savings sought by the Chief Justice.

Finally, cases should be prepared faster and trial dates should come earlier if the changes are properly embraced by the profession, leading to lower legal costs.

Want to hear more?

The Chief Justice is planning on hosting a forum on 30 April at the Supreme Court, and we understand the Chief Judge in Equity is planning on speaking to a number of professional bodies in relation to these developments over the course of the next few weeks. We hope to follow up this article with a more in-depth analysis of the impact of the changes shortly thereafter.

You might also be interested in...

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. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.