Getting disclosure in equity - the application of Practice Note SC Eq 11 and establishing "exceptional circumstances"

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The decision of the New South Wales Supreme Court in RSA (Moorvale Station) Pty Limited v VDM CCE Pty Limited [2013] NSWSC 534 considered the application of Practice note SC Eq 11, which provides that the Court will not make an order for disclosure of documents until the parties have served their evidence, unless there are "exceptional circumstances" necessitating disclosure. Here, the Court held that exceptional circumstances were established, providing a helpful addition to the case law on this point.

Whilst we recommend a detailed reading of the judgment to all readers of the Insurance Flashlight blog, it is important to note that the Court found that "exceptional circumstances" had been established in light of the following factors:

  • a party's expert genuinely believed that the documents sought were necessary for him to complete his report.  It was neither necessary nor appropriate for the Court to express any view about the correctness of the contentions made by the expert as long as the Court considered he genuinely held that belief;
  • there was no hard-and-fast rule requiring that a party seeking to establish the existence of "exceptional circumstances" demonstrate that it has taken all reasonable steps to obtain the documents sought.  Every case must be examined in light of its own circumstances;
  • the likely costs of searching for documents were not, without more, a reason to refuse disclosure; and
  • in light of an imminent hearing date and the due date for the service of reply evidence, the circumstances could be characterised as "exceptional" for the purposes of the practice note.

 This blog was co-authored by DLA Piper Solicitor, Summer Dow.