#8501 - Pre Commencement Prelim Discovery - Litigation

	Preliminary discovery Discovery of identity or whereabouts of D – UCPR r 5.2 Discovery of whether cause of action aginst D – UCPR r 5.3
1	Prelim discovery 1a For Preliminary discovery of identity or whereabouts of D under r 5.2 Two requirements for getting preliminary discovery under s 5.2: (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 (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: 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) 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) must, together with a copy of the supporting affidavit, be served personally on the other person. 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: ‘Reasonable inquiries’: what does his mean? Cost delay and 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). 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 ‘Tends to assist in ascertaining identity’? If it assists, even if more information required, still sufficient. 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 ‘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) Three requirements to satisfying r 5.3: 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 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 Inspection of such a document would assist applicant to make decision as to commence proceedings(r 5.3.(1)(c)). 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) 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: ‘May be entitled to make a claim for relief’: P must show that the contemplated proceedings are likely to rest on some recognized legal ground. Don’t need to show a prima facie or pleadable case. Just have to show that there is reasonable cause to believe that the applicant may have a right to obtain relief in the court. Mere assertion is insufficient: Panasonic v Ngage One should construe present provision liberally. R 5.3 was remedial legislation designed to amplify court’s powers: Panasonic v Ngage In Ngage, Ngage D was going to provide Westfield with P contract, but then jumped into contract with LG. P went to lot of effort in determining costs. Issue: did Ngage use this info in order to get a contract with LG? Possible that P did not obtain contract because P was unable to meet assistance that Ngage required. However still ‘quite a bit of suspicion’ as to whether Ngage had shared info outside scope of contract with P. Or that Ngage used information later against plaintiff in order to obtain contract. Issue of costs: in Ngage: Security for costs – In Ngage P provided security to $50k to D’s costs and expenses in complying with order, because it might be extremely time consuming because large number of documents should be produced. Legg – this seems strange because it may be that P would think from discovery that there was no breach, and then they’d just have to pay the costs of the particular application. Costs: if contested application then costs follow event. Where a party seeks a special order and other side does not appear to contest, P should bear own costs. However costs were reserved in Ngage. If P commences proceedings because information ensures they win then D should pay for it. If P commences proceedings or doesn’t, and information doesn’t show any breach and P loses, P should pay.

Prelim discovery

1a For Preliminary discovery of identity or whereabouts of D under r 5.2

Two requirements for getting preliminary discovery under s 5.2:
1. (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
2. (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:
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:
1. (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
2. (b) must, together with a copy of the supporting affidavit, be served personally on the other person.
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:

‘Reasonable inquiries’: what does his mean? Cost delay and 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).
1. 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
‘Tends to assist in ascertaining identity’? If it assists, even if more information required, still sufficient.
1. 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
2. ‘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)

Three requirements to satisfying r 5.3:
1. 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
2. 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
3. Inspection of such a document would assist applicant to make decision as to commence proceedings(r 5.3.(1)(c)).
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)
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:

‘May be entitled to make a claim for relief’: P must show that the contemplated proceedings are likely to rest on some recognized legal ground. Don’t need to show a prima facie or pleadable case. Just have to show that there is reasonable cause to believe that the applicant may have a right to obtain relief in the court. Mere assertion is insufficient: Panasonic v Ngage
1. One should construe present provision liberally. R 5.3 was remedial legislation designed to amplify court’s powers: Panasonic v Ngage
In Ngage, Ngage D was going to provide Westfield with P contract, but then jumped into contract with LG. P went to lot of effort in determining costs. Issue: did Ngage use this info in order to get a contract with LG?
1. Possible that P did not obtain contract because P was unable to meet assistance that Ngage required. However still ‘quite a bit of suspicion’ as to whether Ngage had shared info outside scope of contract with P. Or that Ngage used information later against plaintiff in order to obtain contract.

Issue of costs: in Ngage:

Security for costs –
1. In Ngage P provided security to $50k to D’s costs and expenses in complying with order, because it might be extremely time consuming because large number of documents should be produced.
2. Legg – this seems strange because it may be that P would think from discovery that there was no breach, and then they’d just have to pay the costs of the particular application.
Costs: if contested application then costs follow event. Where a party seeks a special order and other side does not appear to contest, P should bear own costs. However costs were reserved in Ngage.
1. If P commences proceedings because information ensures they win then D should pay for it.
2. If P commences proceedings or doesn’t, and information doesn’t show any breach and P loses, P should pay.

Facts	Local Court magistrate ordered RTA to provide prelim discovery (pursuant to r 5.2 UCPR) to Australian National Car Parks. RTA appealed against orders for prelim discovery to NSWCA Fact scenario: ANC /respondent operated car parks, requiring entrains to obtain and display a ticket. Some entrants parked without doing so, respondent wanted to sue them on contracts derived from displaying conditions of entry. Respondent knew only registration number of vechiles and day on which each parked without paying. Any claim brought against driver would involve less than $100. The RTA maintains a register that is required under statute to include the name of the person who owns/manages vehicles, identification details of vehicle, vehicle’s garage address and each registered operator’s name, residential address and address for service of notices. Respondent sought prelim discovery from RTA of details of owners of vechicles so resp could sue for breach of contract. Court noted it would be open to al itigant to issue member of public to make an application under FOI and for a P to bring a suit in equity for discovery under RTA pursuant to Norwich Pharmacal. Outcome: RTA ordered to provide prelim discovery
Principles	General principles about UCPR r 5.2: Prelim discovery rule contains threshold requirements Application must be made on notice to person perceived to have information (r 5.2(7)(b) and be supported by an affidavit stating facts on which applicant relies and specifying kinds of information, documents or things in respect of which the order is sought (r 5.2(7)(a)): RTA v ANC R 5.2(1)(a) R 5.2(1)(a) implies that applicant intends to sue person whose identity is sought. Demonstration of such intention is obviously pertinent to a favourable exercise of discretion to order prelim discovery: re Application of Cojuangco; RTA v ANC Two threshold requirements: R 5.2(1)(a): That the applicant is unable to ascertain identity/whereabouts of intended D despite having made reasonable inquiries. What is reasonable is a question of fact in all the circumstances. The availability of other means of ascertainment (eg resort to FOI act) does not in itself make it unreasonable to claim alternative remedy under s 5.2(1)(a): Hughes Aircraft Systems Cost, delay and uncertainty of alternative measures is relevant to rule’s ‘reasonable inquiries’ component R 5.2(1)(b): applicant must show that respondent to application ‘may have information, or may have had possession of a document or thing’ that tends to assist in ascertaining identity or whereabouts of prospective D. ‘identity or whereabouts’ means place of residence, registered office, place of business, occupation and sex whether person Is individual or corporation ‘may’ or ‘tends to assist’ indicates that applicant does not have to...

Facts

Local Court magistrate ordered RTA to provide prelim discovery (pursuant to r 5.2 UCPR) to Australian National Car Parks.
RTA appealed against orders for prelim discovery to NSWCA

Fact scenario:

ANC /respondent operated car parks, requiring entrains to obtain and display a ticket.
Some entrants parked without doing so, respondent wanted to sue them on contracts derived from displaying conditions of entry.
Respondent knew only registration number of vechiles and day on which each parked without paying.
Any claim brought against driver would involve less than $100.
The RTA maintains a register that is required under statute to include the name of the person who owns/manages vehicles, identification details of vehicle, vehicle’s garage address and each registered operator’s name, residential address and address for service of notices.
Respondent sought prelim discovery from RTA of details of owners of vechicles so resp could sue for breach of contract.
Court noted it would be open to al itigant to issue member of public to make an application under FOI and for a P to bring a suit in equity for discovery under RTA pursuant to Norwich Pharmacal.

Outcome: RTA ordered to provide prelim discovery

Principles

General principles about UCPR r 5.2:

Prelim discovery rule contains threshold requirements
Application must be made on notice to person perceived to have information (r 5.2(7)(b) and be supported by an affidavit stating facts on which applicant relies and specifying kinds of information, documents or things in respect of which the order is sought (r 5.2(7)(a)): RTA v ANC

R 5.2(1)(a)

R 5.2(1)(a) implies that applicant intends to sue person whose identity is sought. Demonstration of such intention is obviously pertinent to a favourable exercise of discretion to order prelim discovery: re Application of Cojuangco; RTA v ANC
Two threshold requirements:
- R 5.2(1)(a): That the applicant is unable to ascertain identity/whereabouts of intended D despite having made reasonable inquiries. What is reasonable is a question of fact in all the circumstances. The availability of other means of ascertainment (eg resort to FOI act) does not in itself make it unreasonable to claim alternative remedy under s 5.2(1)(a): Hughes Aircraft Systems
  - Cost, delay and uncertainty of alternative measures is relevant to rule’s ‘reasonable inquiries’ component
- R 5.2(1)(b): applicant must show that respondent to application ‘may have information, or may have had possession of a document or thing’ that tends to assist in ascertaining identity or whereabouts of prospective D.
  - ‘identity or whereabouts’ means place of residence, registered office, place of business, occupation and sex whether person Is individual or corporation
  - ‘may’ or ‘tends to assist’ indicates that applicant does not have to...

#8501 - Pre Commencement Prelim Discovery - Litigation - Civil Procedure

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