Transcript Tom Anderson – Pre-Action Discovery CPD

Civil Procedure Update
– Pre-action discovery
Tom Anderson
NT Supreme Court Rules – Order 32
SCR 32.03 Discovery to identify a defendant
SCR 32.07 Discovery from non-party
SCR 32.05 Discovery from prospective defendant
Where:
(a) there is reasonable cause to believe that the applicant has or
may have the right to obtain relief in the Court from a person
whose description he has ascertained;
(b) after making all reasonable inquiries, the applicant has not
sufficient information to enable him to decide whether to
commence a proceeding in the Court to obtain that relief; and
(c) there is reasonable cause to believe that the person has or is
likely to have or has had or is likely to have had in his possession a
document relating to the question whether the applicant has the
right to obtain the relief and that inspection of the document by
the applicant would assist him to make the decision,
the Court may order that the person shall make discovery to the
applicant of a document of the kind described in paragraph (c).
The 32.05(a) requirement
When is there “reasonable cause to believe”?
 objective test (actual belief insufficient)
 must be established by evidence (on an interlocutory application)
 must be more than suspicion, a hunch, conjecture, a possibility, an
allegation, an assertion, “a flimsy foundation”
 each element of the potential cause of action
 uncertainty as to elements
 “has or may have the right to obtain relief”
Authorities
 Scarletti Pty Ltd v Millwood Printing Co Pty Ltd, unreported,
VSCA, 28 July 1994 (BC9400965)
 NTA v GRD Kirfield Ltd & Anor [2003] NTCA 01
 John Holland Services Pty Ltd v Terranora Group Management
Pty Ltd [2004] FCA 679
 St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147;
[2004] FCA 1360
 Benchmark Certification Pty Ltd v Standards Australia
International Ltd & Anor (2004) 212 ALR 464; [2004] FCA 1489
 Waller v Waller [2009] WASCA 61
 Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506;
[2010] NSWCA
The 32.05(b) requirement
When have “all reasonable inquiries” been made?
 will depend on the particular circumstances
 prescribes an objective standard (including as to sufficiency)
 requires “a reasonable exhaustion of alternative sources of
information” (CGU Insurance Ltd v Malaysia Int Shipping Corp
Berhad (2001) 187 ALR 279; [2001] FCA 1223)
The 32.05(b) requirement (cont)
What is “sufficient information”?
 applicant must disclose the information it does have (Morton v
Nylex Ltd [2007] NSWSC 562)
 information may be required to decide “whether to commence a
proceeding”, even if application already has sufficient
information to establish a cause of action
 information as to defences or quantum (Quanta Software
International v Computer Management Services (2000) 175 ALR
536; [2000] FCA 969
The 32.05(c) requirement
 must be reasonable cause to believe the person is likely to have
a document, and, inspection would assist to make the decision
 respondent may put on evidence (United Voice v Accolade Wines
Australia Ltd [2013] FCA 285)
The residual discretion
 The Court retains a residual discretion – “may order that the
person shall make discovery …”
 Court likely to limit any order to the documents necessary to
enable the applicant to decide – “… of a document of the kind
described in paragraph (c)”
 may be exercised against an applicant in a borderline case
(Benchmark Certification, Hatfield)
Costs
SCR 32.11 Costs
(1) On an application under this Order the Court may make an
order for the costs and expenses of the applicant, of the person
against whom the order is made or sought and of a party to the
proceeding, including the costs of making and serving an
affidavit of documents, of producing a document for inspection
in accordance with rule 32.09 or of complying with a direction
given under rule 32.10.
(2) The Court may make an order under this Order on condition
that the applicant give security for the costs and expenses of the
person against whom the order is made.
Costs (cont)
 Vic and WA authorities suggest that even an unsuccessful
respondent may be awarded its costs of the application
(Schmidt v Won [1998] 3 VR 435; Kallitsas v Emerson Finance Pty
Ltd & Ors [2008] VSC 180; Waller v Waller [2008] WASC 51; J & A
Vaughan Super Pty Ltd v Becton Property Group Limited [2013]
FCA 340)
 This will not necessarily be the case in the NTSC, particularly if
the applicant deploys PD6 of 2009 (Trepang Services Pty Ltd v
Sodexo Remote Sites Australia Pty Ltd [2014] NTSC 23)
 A respondent is more likely to get its costs of production so as
not to be left out of pocket if not pursued further
Questions?