Reading time: 3 minutes

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.

Key Takeaways

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. If you have questions or need assistance with your dispute, get in touch with LegalVision’s dispute resolution lawyers on 1300 544 755, or fill out the form on this page.


How to Protect and Enforce Your Trade Mark

Wednesday 11 May | 11:00 - 11:45am

Protect your business’ brand from copycats and competitors. Register for this free webinar to learn how.
Register Now

Corporate Governance 101: Responsibilities for New Directors

Friday 13 May | 11:00 - 11:45am

If you are a new company director, join our free webinar to understand your legal compliance obligations. Register today.
Register Now

How Franchisors Can Avoid Misleading and Deceptive Conduct

Wednesday 18 May | 11:00 - 11:45am

Ensure your franchise is not accused of misleading and deceptive conduct. Register for our free webinar today.
Register Now

New Kid on the Blockchain: Understanding the Proposed Laws for Crypto, NFT and Blockchain Projects

Wednesday 25 May | 10:00 - 10:45am

If you operate in the crypto space, ensure you understand the Federal Government’s proposed licensing and regulation changes. Register today for our free webinar.
Register Now

How to Expand Your Business Into a Franchise

Thursday 26 May | 11:00 - 11:45am

Drive rapid growth in your business by turning it into a franchise. To learn how, join our free webinar. Register today.
Register Now

Day in Court: What Happens When Your Business Goes to Court

Thursday 2 June | 11:00 - 11:45am

If your business is going to court, then you need to understand the process. Our free webinar will explain.
Register Now

How to Manage a Construction Dispute

Thursday 9 June | 11:00 - 11:45am

Protect your construction firm from disputes. To understand how, join our free webinar.
Register Now

Startup Financing: Venture Debt 101

Thursday 23 June | 11:00 - 11:45am

Learn how venture debt can help take your startup to the next level. Register for our free webinar today.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Winner – Australasian Lawyer
  • 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year - Australasian Law Awards
  • 2019 Most Innovative Firm - Australasian Lawyer