Pre-Action Discovery Applications: fair play or fishing expedition?

It is not uncommon for potential litigants to have been wronged in circumstances where they are unsure whether a cause of action exists or, if it does, who it lies against. The Rules of the Supreme Court 1971 (WA) contain a relatively inexpensive mechanism to enable a party to make an application for pre-action discovery where there are reasonable grounds for believing that a party may have a cause of action against another party.

‍Discovery to identify a potential party

‍The Court has discretion to order discovery on a non-party to identify a potential party in an existing action where it is satisfied:

1. the applicant wants to commence proceedings against the potential party in the course of the action to which the applicant is a party;
2. the applicant has made reasonable enquiries;
3. the applicant has been unable to ascertain a description of the potential party sufficient for the purposes of commencing proceedings against that party; and
4. there are reasonable grounds for believing the non-party had, has or is likely to have had possession of information, documents or any object that may assist in ascertaining the description of the potential party.[1]

Discovery from a potential party

‍Similarly, the Court may order discovery against a potential party where it is satisfied:

1. the applicant may have a potential claim against a potential party;
2. the applicant has made reasonable enquiries;
3. the applicant has not been able to obtain sufficient information to enable the decision to be made as to whether to commence the proceedings; and
4. there are reasonable grounds for believing that the potential party had, has or is likely to have had possession of documents that may assist in making the decision whether to commence the proceedings.[2]

Cautions and considerations in ordering Pre-Action Discovery

‍In reality, this type of application may properly be described as a 'fishing expedition' with its purposes being to ensure parties commencing litigation do so after careful consideration, rather than proceeding in the hope that something might 'turn up' during the usual discovery process. However there must be some indication that the applicant has a cause of action and an order for discovery should not be made if the prospective action is merely speculative.[3]

It is crucially important that in any open communications prior to an application being brought, the applicant does not disclose that it has decided to commence a legal proceeding. If it does so, it will be fatal to obtaining the desired relief.

‍Key Takeaways

‍If an order of this kind is made against you, only those documents actually relevant to a cause of action with the potential party should be discovered and should be no wider than necessary.[4] The Court is mindful that it can be a serious invasion of privacy and confidentiality and the scope for misuse is wide. As a result, an order should only be made where it is necessary to achieve the proper administration of justice and the evidence suggests there is a reasonable belief that the cause of action exists.

Typically, a respondent who has not acted unreasonably in declining to give discovery should be entitled to the costs of responding to the application.[5] A party required to give pre-action discovery may be entitled to costs of the application, costs of seeking legal advice in relation to the application and costs of actually giving discovery.

If you require our assistance or have any queries about these types of applications, please contact Aaron McDonald at aaron@pragma.law or call reception on (08) 6188 3340.

‍[1]The Hancock Family Memorial Foundation Ltd v Fieldhouse (No 2) [2008] WASC 147 at [19].

‍[2]The Hancock Family Memorial Foundation Ltd v Fieldhouse (No 2) [2008] WASC 147 at [34].

‍[3]Stewart v Miller [1979] 2 NSWLR 128.

‍[4]McCarthy v Dolpag Pty Ltd [2000] WASCA 106.

‍[5]Riley v Jubilee Gold Mines NL [2000] WASC 114.