preliminary discovery
PRELIMINARY DISCOVERY DEFINITION • Set of procedures used prior to commencing a proceeding in order to obtain information, documents or evidence from non-‐parties and potential parties • Discovery governed by Part 2.8 of CPRs which deal with disclosure, including: o Discovery to identify a potential defendant or claim o ‘Disclosure of documents’ by parties (i.e., discovery between parties) o Production of documents by a ‘non-‐party’ o Interrogatories served on another party. • Preliminary discovery o Deals with the identity and whereabouts of a potential defendant OR information needed to decide whether to file a claim. You need this information before anything else o Therefore: § S1: Is your client unsure of identity or whereabouts of potential D? OR § S2: Is your client unsure if they have a right to claim relief? PURPOSE OF PRELIM DISCOVERY • Serves the attainment of justice by: o Reducing surprise o Putting parties on an equal footing at trial as to the facts o Helping to elicit and refine the issues • Serves the attainment of efficiency by: o Promoting an expeditious trial o Often being the step that leads to settlement TIMING OF PRELIMINARY DISCOVERY • Generally, an order for PD is sought before lodging the originating claim • However, if a proceeding already commenced, plaintiff can apply for an order of preliminary discovery against a non-‐ party under rr 650 (1)(b)(ii) and 651(1)(b)(ii).
STEP 1: What kind of preliminary discovery do you want? • Identity or whereabouts discovery à apply under R 650 o In equity and in CPRs o Operates on a third party o Only mention equitable basis if third person is ‘mixed up’ in the wrongdoing • Information discovery à apply under R 651 o Only in CPR o Operates on the potential defendant • NB: Can also apply for an order under r 715 that the evidence be preserved STEP 2: Have you met the pre-‐requisite conditions? • Identity or whereabouts discovery o Made all reasonable enquiries? o Likely the third party has useful knowledge? o Are the proposed proceedings merely speculative? o Necessary in the interests of justice? • Information discovery o Have a cause of action? o Reasonable grounds for belief that wrongdoer has info? o Will inspecting document help their decision (to start proceedings)? STEP 3: How will you apply for an order? • If you are not yet a party to proceedings? o Apply before an originating claim o Serve an originating application with a supporting affidavit
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Party to a proceeding but want PD to find out info about a non-‐party wrongdoer? o Make an application during proceedings (Part 6.2 of CPRs)
IDENTITY OF A DEFENDANT IS YOUR CLIENT UNSURE OF IDENTITY OR WHEREABOUTS OF POTENTIAL DEFENDANT?
PRELIMINARY DISCOVERY UNDER CPRs R 650? To seek an order for preliminary discovery to identify a potential defendant an applicant must meet the below conditions and proceed by way of originating application and supporting affidavit rr 650(2), (4). Available to: • An applicant who is likely to have a cause of action against a potential defendant R 650(1)(a) and prospective plaintiff wants to start proceedings against potential D but no proceeding yet been filed r 650(1)(b)(i) • An applicant who IS a party to proceedings (650(1)(b)(ii)), but potential D is NOT • And applicant wants to make a claim in the proceeding against the potential defendant • And the claim could properly have been made if the potential defendant were a party o Proceed by way of application with supporting affidavit (R 6008 for filing and service) • Note: o Unlike the equitable basis, there is no need for the third party to be in any way implicated in the wrongdoing. o Preliminary discovery orders do not override the ordinary position of privilege. PRE-‐REQUISITE CONDITIONS: 1. Has the applicant made all reasonable enquiries into the identity or whereabouts of the potential defendant? R 650(1)(c) • And sill cannot ascertain identity or whereabouts of prospective D • Give examples in Exam o E.g. hit and run, security tapes etc. o This may include going to ASIC to look up the company • May be a large or little amount of work depending on the case 2. Is it likely the third party will have knowledge of facts or the possession of documents that would assist in identifying the prospective respondent? R 650(1)(d) 3. Are the proposed proceedings merely speculative? • There is no need for the applicant to demonstrate a prima facie case, but must go beyond mere suspicion. 4. Is the order necessary in the interests of justice? • Emphasised by the HC in John Fairfax & Sons Ltd v Cojunagco Conditions drawn from r 650 and were outlined by Full Federal court in Hooper v Kirella Pty Ltd. APPLICATION CAN BE BROUGHT AGAINST • Someone else who may have information or may have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the potential defendant: r 650(d) • Note: the respondent does not need to be a guilty party or in any way involved in the relevant dispute (this was an old rule in equity but it has now been displaced by the CPRs) R 650(1): Prescribes the conditions to be met for identity discovery
R 650(5) THE COURT MAY ORDER THE THIRD PARTY TO: • Attend court and be examined as to the identity of the potential defendant r 650(5)(a) and see r 650(6) • Produce to the court a document or ‘thing’ that is or has been in the person’s possession re: the identity or whereabouts of the potential defendant r 650(5)(b) • Serve on the applicant a list of documents or things re: identity or whereabouts of the potential defendant r 650(5)(c) • Produce for applicant’s inspection doc or thing re: the identity re: the whereabouts of the potential defendant r 650(5)(d) R 650 (9) Outlines the meaning of ‘identity’ and ‘whereabouts’ in r 650
STEP 1: What kind of preliminary discovery do you want? • Identity or whereabouts discovery à apply under R 650 o In equity and in CPRs o Operates on a third party o Only mention equitable basis if third person is ‘mixed up’ in the wrongdoing • Information discovery à apply under R 651 o Only in CPR o Operates on the potential defendant • NB: Can also apply for an order under r 715 that the evidence be preserved STEP 2: Have you met the pre-‐requisite conditions? • Identity or whereabouts discovery o Made all reasonable enquiries? o Likely the third party has useful knowledge? o Are the proposed proceedings merely speculative? o Necessary in the interests of justice? • Information discovery o Have a cause of action? o Reasonable grounds for belief that wrongdoer has info? o Will inspecting document help their decision (to start proceedings)? STEP 3: How will you apply for an order? • If you are not yet a party to proceedings? o Apply before an originating claim o Serve an originating application with a supporting affidavit
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Party to a proceeding but want PD to find out info about a non-‐party wrongdoer? o Make an application during proceedings (Part 6.2 of CPRs)
IDENTITY OF A DEFENDANT IS YOUR CLIENT UNSURE OF IDENTITY OR WHEREABOUTS OF POTENTIAL DEFENDANT?
PRELIMINARY DISCOVERY UNDER CPRs R 650? To seek an order for preliminary discovery to identify a potential defendant an applicant must meet the below conditions and proceed by way of originating application and supporting affidavit rr 650(2), (4). Available to: • An applicant who is likely to have a cause of action against a potential defendant R 650(1)(a) and prospective plaintiff wants to start proceedings against potential D but no proceeding yet been filed r 650(1)(b)(i) • An applicant who IS a party to proceedings (650(1)(b)(ii)), but potential D is NOT • And applicant wants to make a claim in the proceeding against the potential defendant • And the claim could properly have been made if the potential defendant were a party o Proceed by way of application with supporting affidavit (R 6008 for filing and service) • Note: o Unlike the equitable basis, there is no need for the third party to be in any way implicated in the wrongdoing. o Preliminary discovery orders do not override the ordinary position of privilege. PRE-‐REQUISITE CONDITIONS: 1. Has the applicant made all reasonable enquiries into the identity or whereabouts of the potential defendant? R 650(1)(c) • And sill cannot ascertain identity or whereabouts of prospective D • Give examples in Exam o E.g. hit and run, security tapes etc. o This may include going to ASIC to look up the company • May be a large or little amount of work depending on the case 2. Is it likely the third party will have knowledge of facts or the possession of documents that would assist in identifying the prospective respondent? R 650(1)(d) 3. Are the proposed proceedings merely speculative? • There is no need for the applicant to demonstrate a prima facie case, but must go beyond mere suspicion. 4. Is the order necessary in the interests of justice? • Emphasised by the HC in John Fairfax & Sons Ltd v Cojunagco Conditions drawn from r 650 and were outlined by Full Federal court in Hooper v Kirella Pty Ltd. APPLICATION CAN BE BROUGHT AGAINST • Someone else who may have information or may have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the potential defendant: r 650(d) • Note: the respondent does not need to be a guilty party or in any way involved in the relevant dispute (this was an old rule in equity but it has now been displaced by the CPRs) R 650(1): Prescribes the conditions to be met for identity discovery
R 650(5) THE COURT MAY ORDER THE THIRD PARTY TO: • Attend court and be examined as to the identity of the potential defendant r 650(5)(a) and see r 650(6) • Produce to the court a document or ‘thing’ that is or has been in the person’s possession re: the identity or whereabouts of the potential defendant r 650(5)(b) • Serve on the applicant a list of documents or things re: identity or whereabouts of the potential defendant r 650(5)(c) • Produce for applicant’s inspection doc or thing re: the identity re: the whereabouts of the potential defendant r 650(5)(d) R 650 (9) Outlines the meaning of ‘identity’ and ‘whereabouts’ in r 650
