Once upon a time in the not-so-distant past when someone wanted to litigate their dispute through the Courts in NSW, they almost always went through a process called discovery. Discovery is a process by which parties disclose documents in existence and relevant to the issues in dispute between the parties. The discovery process was the step between the parties preparing the pleadings
As a younger lawyer, I regularly helped my clients with the discovery process. On smaller matters, discovery can be relatively contained. But in larger matters the amount of documents that parties needed to collate numbered into the thousands or millions. Some of the biggest disputes in New South Wales required entire teams of young lawyers and paralegals preparing millions of documents for a year or more. As you can imagine, the cost of this is huge and greatly added to the costs of litigation making it untenable for many people.
A couple of years ago the Supreme Court made it harder to get discovery in certain matters, and from experience, this has radically changed the way in which litigation is run.
The change was brought about by the huge delays in matters as a result of lengthy discovery, and of course, the huge cost associated with it. The benefit to parties is that cases are to be prepared faster and reach a trial date faster (and at a reduced cost). With the earlier exchange of evidence, we are also seeing that parties are attempting settlement negotiations and mediation earlier.
What Does This Mean for Parties Commencing Litigation in the Supreme Court?
If you are a plaintiff or a defendant in Supreme Court equity proceedings, you need to be ready to prepare and exchange your evidence early!
Gone are the days where you would have the opportunity to review and consider your opposition’s and third party documents before you prepared your evidence. As a plaintiff commencing proceedings, you now need to be on top of the documentary material and be confident in the evidence you can put on from the get go.
What Can You Do if You Want Discovery?
If the parties decide that they want discovery, then they need to apply to the Court and provide evidence of the ‘exceptional circumstances’ that warrants discovery. You will need to be able to show the Court compelling reasons why the discovery of certain documents will aid in resolving the issues in dispute. You will also need to provide evidence to the Court as to the likely cost of the discovery sought.
If the Court does order discovery, it is likely to be extremely narrow and will happen after the parties have put on their evidence.
When you are contemplating litigation, you need to be organised and ensure you have all the supporting documents you need to prepare your evidence. You can’t be guaranteed that you will have an opportunity to inspect your opponent’s documents relevant to the dispute before putting on your evidence. Once the pleadings have been filed, the next step is for the parties to start serving their lay and expert evidence.
If you are involved in a dispute, it is a good idea to engage lawyers to review the material and provide strategic advice for you. Questions? Get in touch with our disputes team on 1300 544 755.