Reading time: 3 minutes

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.


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.


COVID-19 Vaccines In The Workplace

Thursday 10 February | 11:00 - 11:45am

Can you compel employees to have a COVID-19 vaccine? Understand your rights and responsibilities as an employer. Register today for our free webinar.
Register Now

Preventing Wage Underpayment In Your Franchise

Wednesday 16 February | 11:00 - 11:45am

Learn how to identify and prevent wage underpayment in your franchise. Register today for our free webinar.
Register Now

How to Prevent and Manage Commercial Contract Disputes

Thursday 24 February | 11:00 - 11:45am

Learn how to prevent and manage common commercial contract disputes. Register today for our free webinar.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

Our Awards

  • 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Winner – Australasian Lawyer
  • 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year - Australasian Law Awards
  • 2019 Most Innovative Firm - Australasian Lawyer