When can preliminary discovery be used to obtain the evidence needed to commence proceedings?

UCPR 5.3 is designed to assist a prospective litigant who has reason to believe that it has a case against a particular prospective defendant, but does not have the totality of the information required to decide whether there are good grounds to commence the proceedings.

The text of UCPR 5.3(1) is as follows:

If it appears to the court that:

  1. the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and
  2. the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and
  3. inspection of such a document would assist the applicant to make the decision concerned,

the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person’s possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.

In Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69 (a case involving a policewoman to be depicted in Underbelly: The Golden Mile unsuccessfully seeking preliminary discovery of the script of that show so as to ascertain whether the show would defame her). McColl JA set out the principles relevant to an application for preliminary discovery:

  1. First, “[i]n order for it to ‘appear’ to the Court that the applicant ‘may be entitled’ to make a claim for relief, it is not necessary for the applicant to show a prima facie or pleadable case”.
  2. Secondly, while “the mere assertion of a case is insufficient…[i]t will be sufficient if there is reasonable cause to believe that the applicant may have a right of action against the respondent resting on some recognised legal ground”.
  3. Thirdly, “belief requires more than mere assertion and more than suspicion or conjecture. [It] is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action”. The use of the word “may” indicates the court does not have to reach “a firm view that there is a right to relief”.
  4. Fourthly, the requirement that the matters set out in UCPR 5.3 “appear[s]” to the court to establish an entitlement to an order under the rule may be wider than the requirement in the Federal Court Order 15A r 6 that there “is reasonable cause to believe”.
  5. Fifthly, “the question posed by [UCPR 5.3(1)(a)] … is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective respondent [but]… whether the applicant has sufficient information to make a decision whether to commence proceedings in the Court. Accordingly, an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defences”. Thus application of the rule will not be precluded by the fact that the applicant already has available evidence establishing a prima facie case for the granting of relief, as there might be matters of defence which could defeat a prima facie case.
  6. Sixthly, the Rule is to be beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the Court, exercised in the particular circumstances of each case.

The equivalent Federal Court rule to UCPR 5.3 is Order 15A Rule 6, which reads:
Where:
(a)    there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained;
(b)    after making all reasonable inquiries, the applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief; and
(c)    there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist in making the decision;

the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c).

As can be seen, although there are some minor differences in the wording between the two rules, the tests invoked are very similar.

In the Federal Court of Australia, the decision of Hely J in St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 contains a summary of the relevant principles of preliminary discovery which has been adopted by the Federal Court and Federal Full Court as follows:

  1. the rule is to be beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the court, exercised in the particular circumstances of each case;
  2. each of the elements prescribed in subparas (a), (b) and (c) of the rule must be established. Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves;
  3. the test for determining whether the applicant has “reasonable cause to believe”, as required by subpara (a), is an objective one. Further, the words “or may have” cannot be ignored. The applicant does not have to make out a prima facie case;
  4. belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action;
  5. while uncertainty as to only one element of a cause of action might be compatible with the “reasonable cause to believe” required by subpara (a), uncertainty as to a number of such elements may be sufficient to undermine the reasonableness of the cause to believe
  6. the question posed by subpara (b) of the rule is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective respondent. The question is whether the applicant has sufficient information to make a decision whether to commence proceedings in the court. Accordingly, an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defences, or to determine the extent of the respondent’s breach and the likely quantum of any damages award
  7. whether an applicant has “sufficient information” for the purposes of subparagraph (b) also requires an objective assessment to be made. The subparagraph contemplates that the applicant is lacking a piece (or pieces) of information reasonably necessary to decide whether to commence proceedings;
  8. it is no answer to an application under the rule to say that the proceeding is in the nature of a “fishing expedition”. O 15A r 6 “expressly contemplates” what once might have been castigated as “fishing”;

It can be seen from the above that preliminary discovery is only a suitable option for a fairly narrow band of potential litigants, being those who have good reason to believe a claim may exist, but who despite making all reasonable enquiries have not been able to obtain enough information about the claim to decide whether to sue, and who can demonstrate the likelihood that the prospective defendant has the documents required to enable the decision whether or not to sue to be made. Preliminary discovery is not a process for the gathering of evidence to bolster a case that the applicant has already decided it is entitled to bring, although a party may be permitted preliminary discovery in circumstances where it is clear that there is a cause of action but other issues need first to be explored concerning the strength and quantum of the claim before the party knows whether it will be worthwhile to sue. This is not surprising given that there are a variety of interlocutory procedures such as subpoenas, interrogatories and the standard type of discovery which are at the disposal of a party who has actually commenced proceedings.

 

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