21 Mar 2012

A rocket in Equity? NSW Supreme Court to require evidence before discovery

Directions for pre-trial procedural regimes in the NSW Supreme Court's Equity Division are changing! The Registrar is altering consent orders so that evidence is required before discovery. Are the "rocket docket" [1]concepts about to hit the Equity Division?

Changes to discovery and exchange of evidence orders

The rumour mill has been active and we are aware that the registrars and judges in the Equity Division of the NSW Supreme Court are currently querying the need for consent orders for routine discovery in the matters before them. Rather, the preference and evident case management objective is to get the evidence on much earlier than before. Indeed, we understand that the Equity judges hope to avoid making routine orders for discovery at all, and to this end will seek to ensure that parties to the litigation prepare and exchange their evidence earlier.

At the least, in our view it looks as though discovery will not be ordered until the parties have put on their lay evidence which will have the effect of narrowing the issues and reducing the scope for discovery if it is ordered at all.

What will this mean for litigation in NSW?

The practical ramifications for parties is that they will have to attend to their evidence much earlier and without having reviewed and considered the opposition's documents. Early exposure of the competing cases is likely to result in an earlier settlement attempt by negotiation or mediation.

It also means that the court will be considering the parties' evidence well before trial as it determines the relevance of discovery parameters by reference to the real case as exposed by the evidence. Parties will need to ensure the evidence is admissible, given that early Court consideration of the evidence and contests on relevance are inevitable.

Cases should be prepared faster and trial dates should come earlier if the changes are properly embraced by the profession. Lowering of legal costs by reducing the scope of the case, documentation and delays should also follow.

A practice note is currently under consideration and is likely to be issued shortly.


[1] "Rocket Docket" is a colloquialism often used to describe the Federal Court's Fast Track Directions List where commercial cases of expected trial length of five days or less are subject to a tight case management timeline and the exchange of evidence occurs within a very short time after the first trial conference (Scheduling Conference).Back to article


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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.