A swinger who was shot in the back while dressed as The Joker claims police used 'excessive force' on he and his girlfriend while they were at an erotic party.

Dale Ewins and Zita Sukys are suing the state of Victoria for damages after they were shot at a 'Saints and Sinners' party in Melbourne.

Mr Ewins, then aged 35, was shot in the back twice, tasered and punched by police at Inflation nightclub on July 8, 2017.

He was performing a sex act on Ms Sukys, then 37, who was was dressed as Harley Quinn when he was shot with hollow-point bullets.

But police have defended their response that night, claiming Mr Ewins pointed an imitation gun at officers.

Mother-of-two Zita Sukys and father-of-one Dale Ewins took a photo of themselves posing with the fake gun before attending a swingers party at a Melbourne nightclub in the early hours of Saturday morning

The case came before the Supreme Court on Monday when the couple applied for police to disclose several documents, including information about the hollow-point bullets fired by officers.

The couple's lawyer Fiona Ryan noted this ammunition was used and it may be relevant to the case against police.

'He (Mr Ewins) was shot twice in the back with these bullets, which we know can do certain things to the human body,' she said.

'It was entirely excessive to then Taser him multiple times.'

Hollow-point bullets are known to expand or flatten on impact with a semi-soft surface, such as a human body.

As a result they can cause more physical damage and incapacitate a person more quickly than full metal jacket bullets.

But they are also considered safer for certain situations as they can stop an attacker quickly and are less likely to pass through a body and ricochet.

The couple say Mr Ewins was kneeling and performing a sex act on Ms Sukys (pictured) on a couch when they were surrounded and fired at by police

The state's lawyer, Paul Lawrie, said the ammunition was approved and not selected by the individual police members that night.

In any case, the incident at Inflation unfolded within seconds, and questions about the type of ammunition were 'artificial', Mr Lawrie said.

'It's not the sort of situation portrayed in the movies of the person behind the firearm knowing with precision the effect of what's just happened,' he said.

'The effects of firing at a person are so infinitely variable.'

Judicial Registrar Julie Clayton ordered Victoria Police to disclose any documents they have concerning the use of hollow-point ammunition.

The owner of a Melbourne nightclub, where two people were shot by police during a fancy-dress swingers ball, said the couple were in a compromising position at the time and the venue was aware the man had a fake gun

Relevant emails sent between police must also be handed over, as well any excessive force claims previously made against the officers involved.

Mr Ewins and Ms Sukys are suing the state for lost earnings, claiming police were negligent and used excessive force.

They say Mr Ewins was kneeling and performing a sex act on Ms Sukys on a couch when police surrounded them and fired.

But the state alleges an officer yelled 'lay down on your stomach' at Mr Ewins before he reached under a cushion and produced the fake gun.

Mr Ewins denies pointing the fake weapon and posing a threat.