In March, 2012, a new Practice Note, Disclosure was applied in the Equity Division of the Supreme Court of New South Wales, including the Commercial List and Technology and Construction list in an attempt by the court to “deal with the burgeoning cost of litigation” according to McDougall J in Leighton International v Hodges; Theiss v Reinforced Earth  NSWSC 448.
The Practice Note provides that the disclosure of documents is not to take place in relevant proceedings until evidence has been served, except in “exceptional circumstances” if it is necessary for the resolution of the “real issues in dispute” in the proceedings. This brings about practical changes, as parties will have to prepare and exchange their evidence as to the real issues early in the proceedings.
Parties will now have to prepare their evidence and provide their evidence without having reviewed and considered the opposition’s documents. Disclosure will only be ordered if the parties are able to satisfy the “exceptional circumstances” required.
What constitutes ‘exceptional circumstances’ has yet to be clearly defined through case law, but has been summarised by McDougall J to be:
A) Not normal, or usual;
B) Something out of the ordinary;
C) Need not be unique;
D) Not “exceptional” at large but
E) “Exceptional” because they necessitate disclosure.
Parties seeking discovery need to make an application with a supporting affidavit including:
1) Reasons why disclosure is necessary for the resolution of real issues in dispute;
2) Specific documents or category of documents sought with express relevance to the proceedings, and
3) The likely cost of such disclosure referencing the number of documents, hours and resulting cost.
Disclosure includes the discovery process and subpoenas to produce. If disclosure is ordered, it will only happen after the parties have served their evidence which will narrow the issues in dispute and reduce the scope for disclosure. The aim is to make litigation less oppressive for the court, practitioners and clients by providing more focus on witness statements through limiting discovery.
It is hoped that an early exchange of evidence will lead to the court considering parties’ evidence ahead of the trial and determine the relevance of discovery in relation to the real issues. Early exposure of the real issues in evidence is likely to lead to early settlement and greater attempts towards negotiation, mediation or arbitration which seeks to satisfy the overriding objective of the Civil Procedures Act 2005 and the Uniform Civil Procedures Rules “to facilitate the just, quick and cheap resolution of the real issues in dispute in any proceedings before the court”.
Cases should be prepared faster and trial dates should come earlier if the change is embraced.