A lesson from the Bench: More detail on disclosure in the Equity Division

Key Points:

Serving evidence before discovery may lead to a shift in focus of testimonial evidence.

We now know more about how the Supreme Court's new Practice Note SC Eq 11 will operate, following a forum with Chief Justice Bathurst, Chief Justice Bergin in Eq, and Justices Brereton and Hammerschlag at the Court on 30 April.

As we've previously discussed, SC Eq 11 all but ends the parties' expectation that they will move to discovery as a matter of course.

The test for an order for disclosure

An order for disclosure under SC Eq 11 will be made if it is "necessary for the resolution of the real issues in dispute in the proceedings". The Uniform Civil Procedure Rules 2005 (UCPR) predicate the test for discovery as including those documents that are "relevant" to the real issues in dispute.