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Pre Commencement Prelim Discovery Notes

Law Notes > Litigation - Civil Procedure Notes

This is an extract of our Pre Commencement Prelim Discovery document, which we sell as part of our Litigation - Civil Procedure Notes collection written by the top tier of University Of New South Wales students.

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5 precommencement> prelim discovery

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5 Pre-Commencement - PRELIMINARY DISCOVERY

1. Preliminary discovery a. Discovery of identity or whereabouts of D - UCPR r

5.2 b. Discovery of whether cause of action aginst D - UCPR

1 r 5.3 Prelim discovery

1a For Preliminary discovery of identity or whereabouts of D under r

5.2 1.1 Two requirements for getting preliminary discovery under s 5.2: a. (1)(a) applicant has made reasonable inquiries but is

unable to sufficiently ascertain the identity or whereabouts of the person for the purpose of commencing proceedings AND b. (1)(b) some person other than the applicant may have information or a document that tends to assist in ascertaining the identity or whereabouts of the person concerned:

1.2 How to get this? Unless court orders otherwise, under r 5.2(7) an application for an order for preliminary discover under r 5.2: a. (a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of information, documents or things in respect of which the order is sought, and b. (b) must, together with a copy of the supporting affidavit, be served personally on the other person.

1.3 orders the judge can make under r 5.2(2): (2) The court may make either or both of the following orders against the other person: (a) an order that the other person attend the court to be examined as to the identity or whereabouts of the person concerned, (b) an order that the other person must give discovery to the applicant of all documents that are or have been in the other person's possession and that relate to the identity or whereabouts of the person concerned. (3) A court that makes an order for examination under subrule (2) may also make either or both of the following orders: (a) an order that the other person must produce to the court on the examination any document or thing that is in the other person's possession and that relates to the identity or whereabouts of the person concerned, (b) an order that the examination be held before a registrar (May want to call someone into court when there is no documents). Further examination of the two requirements to getting discovery:

1.4 'Reasonable inquiries': what does his mean? Cost delay and

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uncertainty of alternative measures is relevant: RTA v ANCP. (existence of alternative measures does not in itself make it unreasonable to claim alternative remedy: RTA v ANCP). a. in RTA v ANCP - ANCP could have lodged individual FOI applications in order to discern the identity of car owners, but the cost and delay involved in this would not have constituted a 'reasonable inquiry': RTA v ANCP

1.5 'Tends to assist in ascertaining identity'? If it assists, even if more information required, still sufficient. a. In RTA v ANCP ANCP sought prelim discovery from RTA of details of owners of vehicles, this would not be information of who was actually driving the car that breached contracts with ANCP, but this register would assist. For practically all households owner will know who was driver. The need for additional information did not prevent an order: RTA v ANCP b. 'identity or whereabouts' has extended definition in r 5.1: Identity refers to name, place of resident, place of business, occupation and sex, whether person is individual or corporation. 1b for preliminary discovery to ascertain whether cause of action: r

5.3 Note: The more reasonable inquiries that you make, the more you may have sufficient information, so the harder it may be to show that you have not been able to obtain sufficient information. (Legg)

1.1 Three requirements to satisfying r 5.3: a. Reasonable inquiries: Applicant may be entitled to make a

claim for relief against a person, but having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings; (r 5.3(1)(a) and b. Document that can assist: prospective D may have or have had possession of a document/thing that can assist in determining whether applicant is entitled to make claim of relief; (r 5.3.(1)(b)) and c. Inspection of such a document would assist applicant to make decision as to commence proceedings(r 5.3.(1)(c)).

1.2 What court can order: Court can order that prospective D give discovery to applicant of all documents that are/have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief: r 5.3(1)

1.3 How to get this: under r 5.3(3) Unless the court orders otherwise, an application for an order under this rule: (a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and (b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed. Further examination of the three requirements to getting r5.3 discovery:

1.4 'May be entitled to make a claim for relief': P must show that the

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