Cutting time and costs in litigation
The new Practice Note applying to the Equity Division of the Supreme Court now prevents parties "fishing in an enormous pool of documents to see if some minnow, or, for that matter, pike, may be attracted." 1
The new Practice Note 11 in the Equity Division of the Supreme
Court (insert hyperlink to:
Essentially, the new Practice Note has removed the general presumption to participate in a discovery (or disclosure) process between the parties. Instead, the parties are required to provide their evidence to the opposing side prior to the Court making any orders for discovery (or disclosure).
(a) What was happening before the new Practice Note?
Prior to the new Practice Note, parties to legal proceedings used to participate in a discovery process prior to the preparation of evidence. The discovery process involved compiling a list of "discoverable documents" by both parties and the exchange of documents listed. Often the discovery process was both extremely expensive and was incredibly time consuming for the parties involved. However, in some litigation it was a particularly useful information gathering tool. Arguably, the discovery process was often over-utilised by parties to proceedings as a permitted "fishing expedition" to bolster their case against their opponent or to delay the progress of the proceedings generally. That being said, you would be hard pressed to find a lawyer who would admit that these tactics were utilised.
(b) How does the new Practice Note operate?
Under the new Practice Note, the parties will be required to provide their evidence to the opposing side prior to the Court making any orders for discovery (or disclosure) unless there are "exceptional circumstances" shown for this position not to apply. The Court will no longer make any order for disclosure in any proceedings in the Equity Division unless it is "necessary for the resolution of the real issues in dispute in the proceedings." In both instances, any application for an order for discovery (or disclosure), whether it is by agreement or otherwise, must be supported by an Affidavit.
(c) How will the new Practice Note affect my case (or my future case) in the Supreme Court?
The Practice Note will not affect existing proceedings in the Supreme Court with a discovery process in place. The Practice Note will apply to all new proceedings or existing proceedings without a discovery process in place.2
(d) How will the new Practice Note affect me?
A recent forum on the operation of the Practice Note with the NSW Bar Association on 2 May 2012 highlighted the following affects of the new Practice Note:
- Focuses the claims of both parties;
- Improves the quality and credibility of witness statements prepared as the statements cannot be tailored based on documents (ordinarily accessible via discovery).3
- Facilitates the "just, quick, cheap resolution of the real issues in the dispute or proceedings." 4
- With reference to the above, parties should be aware of the following practical affects:
- It will be imperative for a party commencing legal proceedings to ensure that there is sufficient evidence available to prove their claim rather than being reliant upon a successful "fishing expedition."
- It will provide an opportunity to a party responding to legal proceedings to consider the strength and merits of the opponent's case against them based on the evidence provided without incurring substantial costs involved in the process of disclosure (or discovery).
- For new proceedings, the Court will be reluctant to make orders for discovery (or disclosure) unless there are "exceptional circumstances." Parties will be required to satisfy the Court of the high threshold that the disclosure is related to the "real issues in dispute" in the legal proceedings. Therefore, any orders for discovery (or disclosure) will likely be considerably narrower and less oppressive in their scope.
- All parties will need to ensure that they have a thorough understanding of the existence of all their own documents to ensure that their own evidence (provided to their opponent) is not later comprised by the production of documents which may contradict their evidence. This would have far reaching consequences for the accuracy and credibility of the witnesses in any legal proceedings.
- ) The implementation of the new Practice Note will arguably improve efficiency in litigation, reduce the legal expenditure incurred by the parties in participating in discovery (or disclosure) processes and also result in earlier Hearing dates as parties will be required to prepare their evidence earlier in the proceedings.
1 New Price Retail Services v David Hanna;
Australian Pharmaceutical Industries v David Hanna  NSWSC 422
2 Leighton International v Hodges;Thiess v Reinforced Earth  NSWSC 458 at  - 
3 His Honour Justice Brereton, NSW Bar Association Forum, 2 May 2012
4 Section 56, Civil Procedure Act 2005 (NSW); His Honour Justice Hammerschlag, NSW Bar Association Forum, 2 May 2012.
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