Reading time: 3 minutes

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.

***

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.

Webinars

Construction Contract Essentials

Thursday 12 August | 11:00 - 11:45am

Online
Understand how construction contracts are drafted and how to protect your construction business.
Register Now

Startup 101: Understanding Cap Tables and ESOPs

Thursday 19 August | 11:00 - 11:45am

Online
Cap tables and employee share option plans are essential for fast-growing startups. Learn more with this free webinar.
Register Now

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. From just $119 per week, get all your contracts sorted, trade marks registered and questions answered by experienced business lawyers.

Learn more about LVConnect

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.

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