By -

Snapshot

  • An application for preliminary discovery can be made to ascertain the identity or whereabouts of a potential defendant before proceedings have been commenced to identify a prospective defendant or defendants.
  • The relevant provision appears in rule 5.2 of the Uniform Civil Procedure Rules 2005 (NSW) and a similar, but not identical provision, appears in rule 7.22 of the Federal Court Rules 2011 (Cth).
  • In the recent decision of iSAM Securities (UK) Ltd v Press, Richmond J extracted the five elements required for such an application.

This article analyses the legislative provisions and relevant authorities concerning the making of applications for preliminary discovery to ascertain the identity or whereabouts of a prospective defendant under rule 5.2 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) and rule 7.22 of the Federal Court Rules 2011 (Cth) (‘FCR’). It also seeks to shed light upon the criteria for a successful application and the evidence required to improve the prospects of success. These rules should be distinguished from applications for the preliminary discovery of documents in rule 5.3 of the UCPR and 7.23 of the FCR. These rules were discussed in ‘Go fish? How to successfully apply for preliminary discovery’ in the July 2024 Legal Updates.

You've reached the end of this article preview

There's more to read! Subscribe to LSJ today to access the rest of our updates, articles and multimedia content.

Subscribe to LSJ

Already an LSJ subscriber or Law Society member? Sign in to read the rest of the article.

Sign in to read more