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In brief - Parties now required to serve evidence before Court
makes orders for disclosure
On 22 March 2012, the Honourable T.F. Bathurst, Chief Justice of
the Supreme Court NSW, issued a new Practice Note (
Practice Note 11), making important changes to the disclosure
of documents in litigation conducted in the Equity Division of the
Supreme Court of New South Wales.
Previously, parties would commonly elect to undertake a
comprehensive and (generally) very expensive discovery process
before exchanging evidence. However, pursuant to the new Practice
Note, which commenced on 26 March 2012, parties are now required to
serve their evidence before the Court will make any orders for
"disclosure".
Parties need to apply to the Court with a supporting affidavit
if seeking disclosure before service of evidence
Should any party seek disclosure before the service of evidence,
it is necessary for that party to make an application to the Court,
supported by an affidavit identifying:
The reasons why disclosure is necessary for the resolution of
the real issues in dispute in the proceedings
The classes of documents in respect of which disclosure is
sought
The likely cost of such disclosure
Further, the Court will not make an order for disclosure until
the parties have served their evidence unless it is persuaded that
exceptional circumstances exist. It is unclear what makes one case
more "exceptional" than the next.
Will "disclosure" also include the issuing of notices
to produce and subpoenas?
It is also unclear, given the use of the word
"disclosure", exactly how far reaching the Practice Note
is. It is my opinion that for the purposes of the Practice Note,
disclosure will include not only discovery (excluding preliminary
discovery), but also the issuing of notices to produce and
subpoenas.
This is yet to be tested by the Court. But the Court's
interpretation of "disclosure" will affect how parties
may utilise notices to produce in lieu of discovery.
Court insists on compliance with Practice Note 11
I have had first hand experience of the Court's attitude and
recently witnessed that despite circumstances where all parties
consented to proposed discovery orders, the Court refused to order
"disclosure" (ie discovery) where the Practice Note was
not complied with. We will no doubt see the Court continuing to
apply this Practice Note strictly.
I am currently involved in an application before the Court
seeking discovery (as a form of disclosure) before evidence. That
application is one of the first few listed and is scheduled to be
heard in early May 2012. Accordingly, the full practical
implications of the Practice Note are yet to be felt.
Fair, quick and cheap resolution is the aim
The Practice Note aims to achieve the just, quick and cheap
resolution of matters in dispute in the proceedings. Given the
above uncertainties regarding what "disclosure" means, in
my view it is equally unclear whether the Practice Note will
achieve its purpose.
Perhaps that is why the Practice Note concludes that the Court
can impose a limit on the amount of recoverable costs in respect of
disclosure.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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