Preliminary discovery can be a valuable tool when uncertainties arise in your case. It involves seeking a court order to compel the other party to provide specific documents or information before formal legal proceedings commence. This article will explore the:
- circumstances warranting the use of preliminary discovery;
- factors courts consider when granting such requests;
- requirements for obtaining preliminary discovery; and
- important considerations you should take into account before initiating the application process.
By exploring these aspects, you can better understand when and how preliminary discovery can enhance your legal position.
When Should You Use Preliminary Discovery?
Preliminary discovery is usually conducted for one of two purposes either to:
- identify a defendant or their whereabouts; or
- determine whether or not you should commence proceedings against a potential defendant.
You should not use preliminary discovery to obtain documents or evidence that can strengthen or weaken a case. You should make an application where you know you have an entitlement, but you lack particular information to make a clear decision about commencing proceedings.
Court Considerations
During preliminary discovery, a court will consider various factors to determine whether to grant the application. These may include the following:
- the court will assess whether the requested documents or information are relevant to the issues in dispute in the proceeding;
- the party seeking preliminary discovery must demonstrate that the documents or information sought are necessary for the fair and effective conduct of their case;
- the court may consider whether the information sought could be obtained through other means, such as through the ordinary discovery process or other investigative methods;
- the court will weigh the potential benefits of granting preliminary discovery against any potential prejudice or burden it may impose on the responding party; and
- in some cases, the court may consider the public interest in ensuring access to justice and the fair resolution of disputes.
This guide provides key information on how to manage a business dispute as quickly and cost-effectively as possible.
What Must You Show the Court To Obtain Preliminary Discovery?
Generally, it is the court’s discretion whether to order preliminary discovery. However, as an applicant, you must be able to show the court a set of criteria.
Firstly, you must be entitled to make a ‘claim for relief’ against the potential defendant. As part of this, you must prove that you are bringing a claim with a proper basis against the other defendant. Further, you must show that you have a recognised legal ground that gives you the right to bring a claim where it is not purely based on speculation.
The potential defendant may have a document that could assist you in determining whether you have a claim for relief. Inspection of the document would help you decide whether you should commence proceedings.
Additionally, you must have made reasonable enquiries to identify the defendant and their whereabouts. To show this, you will need to prove that you have made enquiries across multiple sources. If you have only made enquiries in one source of information, it will not be enough. Essentially, you will need to demonstrate that, despite having made reasonable enquiries, you have not been able to obtain sufficient information. This should have hindered your ability to decide whether or not to commence proceedings.
Points to Consider Before Making an Application
If you wish to make an application for preliminary discovery, there are some aspects of your situation that you should consider with your lawyer:
- The defendant’s identity and your causes of action: You will need to establish these factors regardless of whether you wish to commence an application for preliminary discovery;
- Key circumstances: This includes the specific information about your cause of action and what defences a defendant may raise in response. Additionally, you should consider the deficiencies in the information you possess;
- Reasonable inquiries: Consider all the options to retrieve a document from a potential defendant, including options that avoid engaging the court;
- The urgency of your claim: In certain circumstances, there may not be enough time to engage in preliminary discovery; and
- Funding litigation: If the potential defendant objects to your application for preliminary discovery, the court process to obtain the order will be longer and more complex, which will incur legal costs. If you are unsuccessful at that hearing, the court may order that you pay the other side’s cost for their time in court.
Key Takeaways
Preliminary discovery is a process you can undertake before legal proceedings. It involves obtaining a court order to compel the other party to provide certain documents or information. It is crucial that you understand the circumstances that warrant the use of preliminary discovery, the factors courts consider when granting such requests, the requirements for obtaining preliminary discovery and important considerations before initiating the application. Being well-informed about the process empowers parties to leverage effectively, ensuring a more strategic and informed approach to resolving legal disputes.
If you are applying for preliminary discovery, our experienced disputes and litigation lawyers can assist you as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
You should consider this to identify a defendant or their whereabouts. Additionally, if you are aware, they possess certain documents or information that will determine whether or not you should commence proceedings.
A claim for relief is a claim made with a proper legal basis to do so. Generally, when claiming relief, you should seek some form of money from the defendant, the court to declare your rights, a determination on a legal question or any other claim meant to be heard in the court.
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