Thursday, May 3, 2012

NSWSC Equity Practice Note 11

There has been a little disquiet about the new NSW Supreme Court Equity Division Practice Note relating to Disclosure (PN11).
In general terms, the Practice Note has introduced what is being referred to as a “timing requirement”, to the effect that a party will not be entitled to “disclosure” prior to the service of its evidence, except in “exceptional circumstances”.
The disquiet seems to have arisen as a result of the use of the term “disclosure”, and various rumours, murmurs and rumblings that “disclosure” includes notices to produce and subpoenas.  The disquiet has not been helped by the fact that the Practice Note does not define what it means by “disclosure”.  The elucidation of the effect of the Practice Note has been left to a series of seminars delivered by the Chief Judge in Equity and a number of her puisne judges. 
I did not have the opportunity to attend either of the seminars, and what I am about to say is based upon a report to me from a colleague who attended the seminar on Wednesday, 2 May 2012.  I make that observation because what has been reported to me seems to differ slightly from reports I have received of the seminar given on Monday, 30 April 2012.
In short form, the relevant propositions are these:
Firstly, although paragraph 4 of the Practice Note would suggest that “disclosure” means “disclosure of documents”, according to Brereton J in the Q&A “disclosure” means discovery and interrogatories.  So it would seem to go beyond discovery, and goes beyond documents.
Secondly, the Practice Note in terms does not apply to subpoenas or notices to produce.  However, subpoenas and notices to produce are liable to be set aside as an abuse of process if their object is to circumvent the timing requirement.  It should be noted that this will apply even to properly drawn subpoenas and notices to produce (i.e. ones that are not liable to be set aside on the basis they are being used as a substitute for discovery). It appears they will be readily allowed if used in aid of interlocutory applications.
Thirdly, according to Brereton J paragraph 5 of the Practice Note does not change the test for discovery.  This is rather curious as paragraph 5 requires that the disclosure be “necessary”, which is currently the test under the UCPR for interrogatories but not for discovery (where the lower threshold of “relevance” is used).  Bergin CJ in Eq said the same thing in relation to subpoenas.  “Necessity” is certainly not a threshold required by the UCPR, and I cannot recall ever hearing of a subpoena being set aside on the grounds it was not “necessary”.
Fourthly, the requirement that evidence be served includes both testimonial evidence and documentary evidence.
Fifthly, disclosure may be allowed where the documents are required for the purposes of briefing an expert, but even then the Court may require lay evidence to served first.
Sixthly, it would appear that a party will still be entitled to call for documents referred to in an originating process or pleading (on the basis that the notice to produce calling for such documents is not seen to be circumventing the timing rule), and a document referred to in an affidavit or witness statement will also be allowed, as the testimonial evidence will by then of course have been served.
In short, a little re-drafting of the Practice Note wouldn't go astray, if only to make clear those things that are now apparent only as a result of attending a seminar given by members of the Court.

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