Preliminary discovery is where one party (the applicant), before legal proceedings have commenced against another party (defendant), tries to identify that possible defendant or to ascertain whether the applicant has a particular cause of action against the possible defendant. Generally preliminary discovery is limited to documents, and may permit orders requiring the person being asked to give discovery to attend court and be examined orally. If preliminary discovery is sought, there must be a formal request of documents, things or information.  The letter should also put the other party on notice of the intention to apply to the court if the documents, things or information are not provided.

Preliminary Discovery in Australia

Rules enabling preliminary discovery vary depending on jurisdiction:

  • CPRs 2006 (ACT);
  • Division 2.8.6, Part 5 UCPRs 2005 (NSW);
  • Order 32 of the SCRs (NT);
  • Rules 32, 146 Supreme Court Civil Rules 2006 (SA);
  • Order 32 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic); and
  • Order 26A Rules of the Supreme Court (WA).
  • In Queensland preliminary discovery (i.e. discovery from a non-party) is allowed only by interrogatories to help decide whether a person is an appropriate party to the proceeding or would be an appropriate party to a proposed proceeding by the person administering the interrogatories: UCPRs 1999, r 229(1)(b) (QLD).

A litigation lawyer can assist you with a dispute you may have, or if you are seeking preliminary discovery. The purpose of preliminary discovery is not to produce material which will strengthen or enhance a decision to commence proceedings, but rather to provide what is reasonably necessary to enable the decision to be made.

Reasonable Inquiries for Preliminary Discovery

The applicant must make reasonable inquiries to obtain an order. This includes sourcing information available in the public domain such as annual reports, Freedom of Information application, issuing of subpoenas and requesting specific classes of documents going to issues of liability, defences and damages.

In the decision in Coffey International Pty Ltd v Cullen [2015] FCA 28, the Federal Court provides guidance for employers in relation to when preliminary discovery orders are available. Preliminary discovery orders are available when a party reasonably believes they may have a right to relief, but does not have sufficient information to decide whether to commence proceedings and the relevant respondent is likely to have documents which would assist in deciding whether to commence proceedings.

Conclusion

LegalVision can assist you with any questions you may have about preliminary discovery. We have a team of great lawyers who can assist you in understanding a dispute you may have. Please call our office on 1300 544 755 and our Client Care team will happily provide you with an obligation-free consultation and a fixed-fee quote.

Anthony Lieu

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