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.
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