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  • Preliminary discovery is an application made where the production of documents is sought from a prospective defendant before proceedings have been commenced. It is used to determine whether proceedings should be commenced against that party.
  • The relevant provisions under rule 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) and the similar provisions under rule 7.23 of the Federal Court Rules 2011 (Cth) governing such applications appear to be little understood and rarely used.
  • Despite appearing relatively simple, these provisions are informed by recent authoritative judgments and are made up of a number of elements each of which should be satisfied.

This article analyses the legislative provisions and authorities concerning the making of applications for preliminary discovery in rule 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR) and rule 7.23 of the Federal Court Rules 2011 (‘FCR’). It seeks to shed light on how to improve the prospects of success. Although the provisions are in similar terms, they are not identical. Emphasis will be given to the position under the UCPR with reference to the manner in which the FCR provision may differ.

It should be noted that rule 5.3 is to be distinguished from UCPR rule 5.2 which seeks documents to ascertain a prospective defendant’s identity or whereabouts (similar to FCR rule 7.22) and UCPR rule 5.4 dealing with discovery of documents from a party who is not a party to existing proceedings (similar to FCR rule 20.23).

The authorities

In the recent decision of Muscat v Qin [2024] NSWSC 113 (‘Muscat’), McGrath J usefully distilled the principles that have emerged in recent years concerning rule 5.3. McGrath J identified the starting point in the authorities as the judgment in O’Connor v O’Connor [2018] NSWCA 214 (O’Connor’) where five elements were identified (at [20]):

  • the applicant may be entitled to make a claim for relief from the court against the prospective defendant;
  • the applicant has made reasonable enquiries to obtain sufficient information to decide whether or not to commence proceedings;
  • having made reasonable enquiries, the applicant is unable to obtain sufficient information to make that decision;
  • the prospective defendant may have or have had possession of a document or thing that could assist in determining whether the applicant is entitled to make a claim for relief; and
  • inspection of such a document would assist the applicant to make the decision.

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