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You may want to consider preliminary discovery if you are unsure about certain aspects of your case. Preliminary discovery is a process conducted prior to legal proceedings and involves obtaining a court order to compel the other party to provide certain documents or information. This article will explore when you should use preliminary discovery, what you need to show to a court to obtain it and some considerations prior to making an application for preliminary discovery. 

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
  • assess the claims of an applicant’s case. This is generally to determine whether or not you should commence proceedings against a potential defendant.

You are not to use preliminary discovery to obtain documents or evidence that can strengthen or weaken a case. You should make an application where you are aware that you have an entitlement, but you lack particular pieces of information to make a clear decision about commencing proceedings. 

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 that:

1. You may be entitled to make a ‘claim for relief’ against the potential defendant. You need to prove that you are bringing a claim with a proper basis against this other defendant. Further, you will need to show that you have a recognised legal ground that gives you the right to bring a claim, not purely based on speculation. A ‘claim for relief’ usually means you are seeking:

  • some form of money from the defendant;
  • the court to make a declaration on your rights;
  • a determination on a legal question; or
  • any other claim that is meant to be heard in the court. 

2. You 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.

3. Despite having made reasonable enquiries, you have not been able to obtain sufficient information to make a decision about whether or not you should commence proceedings.

4. The potential defendant may have or had a document or thing that could assist you in determining whether you have a claim for relief.

5. Inspection of the document would help you make the decision of whether you should commence proceedings.

Things to Consider Before Making an Application for Preliminary Discovery

If you wish to make an application for preliminary discovery, there are some aspects of your situation that you should consider with your lawyer:

  • who the defendant is and what your causes of action are. You will need to establish these factors regardless of whether you wish to commence an application for preliminary discovery;
  • what the key circumstances are that form your cause of action, and what defences a defendant may raise in response;
  • the information you currently possess and the deficiencies in that information;
  • what reasonable enquiries you can make. Consider all the options to retrieve a document from a potential defendant, including options that avoid engaging the court;
  • how urgent your claim is. In certain circumstances, there may not be enough time to engage in preliminary discovery; and
  • your ability to fund 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 not successful at that hearing, the court may order that you have to pay the other side’s cost for their time in court.

Key Takeaways

Preliminary discovery is a process you can undertake prior to legal proceedings. It involves obtaining a court order to compel the other party to provide certain documents or information. If you wish to make a claim, you should talk to a lawyer to discuss your situation and the options available. For assistance with preliminary discovery and to help you determine whether you have a claim, contact LegalVision’s disputes and litigation lawyers on 1300 544 755 or fill out the form on this page. 

Frequently Asked Questions

When should I consider preliminary discovery?

You should consider preliminary discovery if you need to identify a defendant or their whereabouts. Or additionally, if you are aware they possess certain documents or information that will determine whether or not you should commence proceedings.

What is a ‘claim for relief’?

A claim for relief is a claim made with a proper legal basis to do so. Generally, when you are making a claim for relief, you should seek some form of money from the defendant, the court to make a declaration on your rights, a determination on a legal question or any other claim that is meant to be heard in the court.

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