Preliminary Discovery

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Preliminary discovery is a form of discovery applied for before the proceedings even start. A party may apply for preliminary discovery for one of the following purposes:

  • Ascertaining the identity or whereabouts of the prospective defendant: r 5.2, UCPR.
    • The order can be made when (both must be satisfied):
      1. The applicant has been unable to ascertain the identity/location of the prospective defendant concerned despite making reasonable enquiries;
        • The availability of alternative method which has not been tried does not automatically mean that the applicant failed to make reasonable enquiries - the other methods might be, in the circumstances, unreasonable due to cost, delay or uncertainty: Roads & Traffic Authority vs Australian National Car Parks.
      2. The person whom the order is to be made against may have information relating to the identity/whereabouts of the prospective defendant.
    • The order can require documents to be produced and/or a person to be orally examined in court.
  • Seeing whether or not to commence an action: r 5.3.
    • The order can be made when (all three must be satisfied):
      1. The applicant may be entitled to make a claim;
        • Only requires to show that there is reasonable cause to believe that there is a cause of action against the prospective defendant: Panasonic Australia v Ngage.
      2. Has been unable to ascertain sufficient information whether to commence proceedings despite making reasonable enquiries;
      3. The prospective defendant may have information which can assists in this decision, and the inspection of the evidence may assist the applicant in the decision.
    • The order can require only documents to be produced.

The making of an order is ultimately at the discretion of the judge. In a scenario where a defendant does not appear or provide any evidence to contest the order, the court should not refuse to exercise its discretion: Panasonic Australia v Ngage.

This topic is within Resolving Civil Disputes.

Contents

Required Reading

Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters, [11.20]-[11.85].

Introduction

[1] Often, a party might feel it has been wronged by another but doesn't have the requisite evidence to begin a claim. In such cases, the party may apply for an order for preliminary discovery - discovery which is made before the start of legal proceedings, in order for the applicant to determine who to litigate or whether there is reason to litigate at all. Preliminary discovery is dealt with in Part 5 of the UCPR (r 5.1-r 5.8)

Under the UCPR, there are main two purposes for which preliminary discovery orders can be made:

  • Ascertaining the identity or whereabouts of the prospective defendant: r 5.2.
    • The order can be made when:
      1. The applicant has been unable to ascertain the identity/location of the prospective defendant concerned despite making reasonable enquiries; and
      2. The person whom the order is to be made against may have information relating to the identity/whereabouts of the prospective defendant.
    • The order can require documents to be produced and/or a person to be orally examined in court.
  • Seeing whether or not to commence an action: r 5.3.
    • The order can be made when:
      1. The applicant may be entitled to make a claim; and
      2. Has been unable to ascertain sufficient information whether to commence proceedings despite making reasonable enquiries; and
      3. The prospective defendant may have information which can assists in this decision, and the inspection of the evidence may assist the applicant in the decision.
    • The order can require only documents to be produced.

The making of an order is ultimately at the discretion of the judge. The order is sought by filling out a summons with a supporting affidavit (addressing the requirements set above). The application (and its accompanying affidavit) must be personally served.

Examples

An example of a preliminary discovery application for the purpose of ascertaining identity or whereabouts was discussed in Roads & Traffic Authority vs Australian National Car Parks:

  • The requirement that the person may have information relating to the identity/whereabouts of the prospective defendant does not require the applicant to establish that the desired information will definitively establish the identity or whereabouts of the prospective defendant - only that it "may" do so, or that it would assist in doing so.
  • The fact that there is an alternative mode of ascertainment which has not been tried does not automatically mean that the applicant failed to make reasonable enquiries - the other methods might be, in the circumstances, unreasonable due to cost, delay or uncertainty.

An example of a preliminary discovery application for the purpose of deciding whether or not to commence an action was discussed in Panasonic Australia v Ngage:

  • The requirement that the applicant may be entitled to make a claim means that the applicant only needs to show that there is reasonable cause to believe that he has cause of action against the prospective defendant.
  • In regards to the court's discretion in granting an order - in a scenario where a defendant does not appear or provide any evidence to contest the order, the court should not refuse to exercise its discretion.

And also in Hatfield v TCN Channel Nine:

  • The court deemed that there was no chance of the injunction sought being granted, so there was no point of exercising the discretion to give preliminary discovery.

End

This is the end of this topic. Click here to go back to the main subject page for Resolving Civil Disputes.

References

BKL refers to Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters.

FDR refers to Michael Legg (ed), The Future of Dispute Resolution (2013) LexisNexis.

  1. BKL, p. 577-9.
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