The Supreme Court in NSW first established preliminary discovery for the purpose of ascertaining a prospective defendant’s identity or whereabouts. Today, preliminary discovery can be used to decide whether or not to commence proceedings against a potential defendant.

Under Rule 5.3 of the NSW Uniform Civil Procedure Rules, preliminary discovery is granted where the following appears:

  • The applicant may be entitled to make a claim against the prospective defendant; and
  • After making reasonable enquiries, the applicant cannot obtain sufficient information to make a decision whether to commence proceedings.

What Must You Show the Court To Obtain Preliminary Discovery?

The court has discretion as to whether to order preliminary discovery, but you must show the following five things (set out below):

  1. The applicant may be entitled to make a claim against the prospective defendant. In the case of Panasonic Australia Pty Ltd v Ngage Pty Ltd [2006] NSWSSC 399, the Chief Judge in Equity said an applicant needs to show there is ‘reasonable cause to believe an applicant has a right of action on a recognised legal ground. In short, not a speculative claim.
  2. The applicant has made reasonable enquiries. This means an applicant needs to show the court that he or she has made reasonable attempts to identify the information required from more than one source. It is not enough to show you followed one source.
  3. Notwithstanding that the applicant has made reasonable enquiries, the applicant is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant.
  4. The potential defendant may have, or may have had, possession of a document or thing that could assist in determining whether or not the applicant can make such a claim for relief; and
  5. Inspection of that document or thing would assist the applicant to make a decision whether or not to commence proceedings.

How to Make an Application

If you are making a preliminary discovery application, you should consider the following practical tips and discuss these with your lawyer:

  1. Identify the prospective defendant and the potential causes of action.
  2. Investigate the factual matters concerning liability and consider any potential defences.
  3. Make reasonable inquiries of the potential defendant.
  4. Analyse the information and evaluate it against the potential causes of action and defences.
  5. Identify where deficiencies are in the information, and demonstrate how the deficiency renders the information insufficient to enable the plaintiff to determine whether to commence proceedings.
  6. Draft categories of documents for discovery, addressing the deficiencies in the information.

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LegalVision’s disputes lawyers who can assist you with preliminary discovery and ascertain whether you have a viable claim. If you have any questions, get in touch with our disputes team on 1300 544 755.

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