Preliminary Discovery

Author: Jasmine Burrows, Progressive Legal

Legal professionals employ various tools and procedures to uncover facts, gather evidence, and build compelling cases. Among these tools, preliminary discovery stands out as a crucial component in the pursuit of justice.

It plays a pivotal role in providing parties involved in legal proceedings with essential information and evidence, enabling them to make informed decisions and ensure a fair and efficient legal process. 

What is preliminary discovery?

Preliminary discovery, also known as pre-action discovery, is a legal process that allows a party to gain access to relevant documents or information from another party before formal legal proceedings commence.  

It is used to facilitate the just, quick, and cheap resolution of legal disputes by enabling parties to assess the merits of their claims or defences, or the extent of potential liabilities or damages. 

The main principle behind preliminary discovery is that it should be an exceptional remedy, used sparingly and only when necessary. It allows a party to access documents or information that is likely to be within the possession or control of another party but is not yet discoverable under the usual discovery process. 

What is the purpose of preliminary discovery? 

The purpose of preliminary discovery is to assist potential litigants in assessing the strength of their case or the viability of their potential claim before initiating a formal lawsuit.  

It provides an opportunity for parties to obtain crucial evidence or information that may not be readily available through other means, helping them make informed decisions about whether to proceed with a legal action or consider alternative dispute resolution methods. 

When should you use preliminary discovery?

There are typically two main situations when you should use preliminary discovery.  

Firstly, if you’re trying to figure out who exactly your potential respondent is or where they are, preliminary discovery would be appropriate. It can help you identify or locate them, which is crucial when you’re planning to take legal action. 

Secondly, let’s say you need some information or documents to decide whether you should go ahead and sue someone. In that case, it can be a useful tool to get the info you need. It gives you a chance to gather the necessary details before deciding whether to start legal proceedings against the person in question.

What are the rules enabling preliminary discovery in Australia? 

*In Queensland, preliminary discovery is allowed only by interrogatories to help decide whether a person would be an appropriate party to proceedings.

What are the grounds for preliminary discovery? 

Typically, for a party to succeed in seeking preliminary discovery, they must satisfy certain key criteria to the court: 

1. You must have a valid reason to make a legal claim against the potential respondent. You need to show that your claim is based on solid grounds and not just speculation. This claim could involve seeking financial compensation from the respondent, asking the court to clarify your rights, resolving a legal question, or any other matter that should be dealt with in Court. 

2. Even after making reasonable efforts, you still haven’t gathered enough information to decide whether you should initiate legal proceedings. 

3. There’s a possibility that the potential respondent possesses a document or item that could be useful in determining the validity of your claim for relief. 

4. By inspecting the mentioned document or item, you’ll be better equipped to make an informed decision on whether you should proceed with legal action. 

5. If the purpose is to identify the potential respondent or their whereabouts, you must have made reasonable efforts to find and locate the potential respondent. To prove this, you should show that you’ve searched for information about the respondent from multiple sources. Merely relying on one source won’t be sufficient. 

What is the process of preliminary discovery?

The applicant must present an ex-parte (without notice) application to the court seeking leave for preliminary discovery. The application should be supported by an affidavit that outlines the specific reasons for seeking preliminary discovery and addresses the above criteria. 

The Court will then assess whether the application meets the requirements and whether the discovery sought is necessary to enable the applicant to plead their case properly. If satisfied, the court may grant leave for preliminary discovery and issue orders directing the prospective respondent to produce the requested documents or information. 

What are the limits of preliminary discovery?

There are some common limitations of preliminary discovery: 

Relevance

The documents or information sought through preliminary discovery must be relevant to the issues in the case or the decision of whether to initiate legal proceedings. Courts typically require a reasonable connection between the information sought and the matter at hand. 

Reasonable prospects

The applicant seeking preliminary discovery must demonstrate that there are reasonable prospects of success in the potential legal action. Courts are unlikely to grant it if the claim appears to be speculative or lacking a genuine legal basis. 

Exhaustion of other avenues

In some cases, the court may expect the applicant to have explored other avenues to obtain the information before resorting to preliminary discovery. If other methods of obtaining the information are available and practical, the court may not grant the request. 

Availability from a party

Preliminary discovery is typically reserved for situations where the information sought is not available from a party to the legal proceedings. If the information can be obtained directly from a party, it may not be granted. 

Proportionality

The court may assess the proportionality of the request, considering the potential burden and cost on the potential defendant in providing the discovery. If the burden outweighs the potential benefits, the court might deny the application. 

Protected information

Some documents or information may be protected by legal privileges, confidentiality, or privacy laws. The court may limit or refuse preliminary discovery if it involves the disclosure of privileged or confidential material. 

Abuse of process

Courts may refuse preliminary discovery if they believe the application is being made for an improper purpose, such as to harass, delay, or gain an unfair advantage over the other party. 

What are the benefits of preliminary discovery? 

Early Case Assessment

Preliminary discovery assists potential litigants in understanding the strength of their case and the viability of pursuing legal action. This allows parties to make informed decisions about whether to proceed or explore alternative methods of resolution. 

Streamlining the Process

Preliminary discovery can help in narrowing down the issues in dispute. By revealing key facts and evidence, parties may recognise aspects of their claims or defences that are weak or unnecessary, leading to a more focused and efficient trial. 

Encouraging Settlement

Preliminary discovery can also encourage settlement negotiations, as parties may be more inclined to find a resolution when faced with the evidence presented during it. 

Preserving Evidence

Discovery enables parties to secure and preserve evidence that might otherwise be lost or destroyed. This prevents the risk of important information becoming unavailable during the course of the trial. 

Key Takeaways

Preliminary discovery is a valuable tool within the Australian legal system, fostering efficiency, fairness, and transparency in resolving legal disputes.

When used judiciously and in accordance with the established criteria, it empowers parties to make informed decisions about their cases and promotes the speedy resolution of conflicts. As a critical component of the pre-litigation phase, it plays a significant role in unearthing the facts and evidence necessary for a just and equitable resolution of disputes in Australia. 

If you’re ready to leverage to power of preliminary discovery for your legal needs, contact our experienced team of litigation lawyers for expert guidance. Simply call us on 1800 820 083 or make an enquiry below and we’ll make sure to get back to you within a day.

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