Australia: Disclosure in NSW Equity Division - The new Supreme Court Practice Note explained

The new Practice Note, SC Eq 11, commenced on 26 March 2012 and applies to all new and existing Supreme Court proceedings in the Equity Division. The Practice Note essentially provides that the court will not permit disclosure of documents until after the parties have prepared and exchanged their written witness statements, unless there are exceptional circumstances. The changes reflect a desire on the court's part to achieve the just, quick and cheap resolution of the real issues in dispute by improving the evidentiary value of the written evidence filed.

Previous practice was that discovery was to be completed prior to the parties preparing their evidence, having regard to the relevant documents available to all of the parties. The object of the Practice Note is to make litigation less oppressive for the court, practitioners and clients by providing more focus on witness statements through the limiting of discovery. By delaying disclosure until the parties have exposed the real issues in dispute through the exchange of evidence, the classes of documents sought by parties are likely to be far less oppressive, enabling a more efficient discovery process.

The Application

As a result of the Practice Note, any party seeking discovery will now need to make a formal application with a supporting affidavit that must include:

1. The reasons why disclosure is necessary for the resolution of the real issues in dispute;
2. Articulate the documents, or classes of documents, sought with a degree of specificity with express reference to the pleadings; and
3. The likely cost of such disclosure with reference to the likely number of documents or folders, the likely number hours, and the likely resulting cost.

An order for disclosure will only be ordered where it is 'necessary' for the resolution of the real issues in dispute. To date, no application has been successful and the applicants in those applications have ultimately conceded that disclosure was not 'necessary'.

Parties rarely give enough attention to identifying the classes of documents sought by way of discovery and likewise, parties do not give proper consideration to those classes when producing documents. The result is that parties over seek and over produce resulting in significant and unnecessary cost and delay.

The court conceded that if a disclosure order is made at the conclusion of evidence, if necessary, the parties would be permitted the opportunity to file additional evidence, but there might be restrictions placed on the scope of that evidence.

Subpoenas and Notices to Produce

Under the Uniform Civil Procedure Rules, leave is not always required to issue a subpoena to relevant third parties. It appears that as a result of the Practice Note, parties may need to seek leave of the court before issuing a subpoena if they wish to do so before serving their evidence.

If notices to produce and subpoenas are issued prior to all parties having served their evidence they may be set aside as an abuse of process. Particularly in circumstances where the documents sought by subpoena or notice to produce would have previously fallen within the scope of discovery.

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This report does not comprise legal advice and neither Gadens Lawyers nor the authors accept any responsibility for it.