A couple who were shot by police while at a Melbourne swingers party last month are taking legal action.

Dale Ewins, 35, and Zita Sukys, 37, were at a “Saints and Sinners Ball” at Inflation Nightclub on King Street on June 10 when police stormed the event.

The officers entered a room where the couple, who were dressed as Marvel characters the Joker and Harley Quinn, were reportedly engaged in a sex act.

Police shone the torch on the couple before opening fire less than six seconds later, hitting Mr Ewins in the back and Ms Sukys twice in the leg.

Dale Ewins, 35, and Zita Sukys, 37, are taking legal action against Victoria Police. (Facebook)

Police claim Mr Ewins was pointing a gun at them and refused to lower it before they fired the shots.

CCTV footage, shot from outside the room, is not clear enough to determine if he was holding a gun.

The couple’s lawyers, from Arnold Thomas & Becker, will claim Mr Ewing was in possession of a toy gun – part of his Joker costume – and that police were aware it was fake, The Age reports .

Arnold Thomas & Becker partner Kim Price told Fairfax the court proceedings would begin today at the Supreme Court of Victoria.

"We understand that prior to the attack, staff at the venue repeatedly told Victoria Police that the 'gun' was a toy,” Mr Price said.

“We understand some staff offered to simply obtain the toy themselves to safely resolve the situation.

"In response, it appears Victoria Police believed it was appropriate to storm the venue with a team of about 10 Critical Incident Response Team members and within 32 seconds, start shooting our clients.”

The couple were shot at a 'Saints and Sinners Ball' at a Melbourne club, dressed as the Joker and Harley Quinn. (Supplied)

Mr Ewins and Ms Sukys will be seeking damages for pain and suffering, loss of earnings and medical expenses and claiming “aggravated and exemplary damages” based on the actions of the police.

The owner of Inflation, Martha Tsamis, will also be taking legal action against Victoria Police, The Age report claimed.

Mr Ewins and Ms Sukys are still recovering from their injuries. Mr Ewins reportedly had to have part of his bowel removed as a result of being shot in the back. He has also undergone several operation to reconstruct this shoulder.