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Pre Commencement Considerations Notes

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This is an extract of our Pre Commencement Considerations document, which we sell as part of our Civil Procedure Notes collection written by the top tier of University Of Sydney students.

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IV. Matters Preceding Litigation

* Preliminary disclosure
Do I know who to sue and what my claim is?
If not, seek preliminary discovery.

* Time limits (limitation periods) How long do I have to commence

proceedings?

* Preservation orders

* Freezing orders (Mareva injunctions)
Are there assets I need to protect or my claim will be futile?

* Search orders (Anton Piller orders)
Are there documents likely to be destroyed?
Jurisdiction: which country, state, court,

*
division?

UCPR r 5.2

Pre-Commencement Considerations Preliminary discovery Time limits (limitation periods) Preservation orders

* Freezing orders (Mareva injunctions)

* Search orders (Anton Piller orders) Jurisdiction Preliminary Discovery r 5.2: identity discovery: discovery to ascertain prospective defendant's identity or whereabouts r 5.3: information discovery: discovery from documents from prospective defendant r 5.4: discovery from documents from other person r 5.6 & 5.8: costs r 5.7: privilege Identity Discovery Discover the identity of a particular defendant (identity discovery) Who to sue (unknown defendant) and Where to serve claim (location of defendant unknown) UNIFORM CIVIL PROCEDURE RULES 2005 PART 5 - PRELIMINARY DISCOVERY AND INSPECTION

5.1 Definitions In this Part: "applicant" means an applicant for an order under this Part. "identity or whereabouts" includes the name and (as applicable) the place of residence, registered office, place of business or other whereabouts, and the occupation and sex, of the person against whom the applicant desires to bring proceedings, and also whether that person is an individual or a corporation.

Implies that the applicant intends to sue the person whose identity is sought, cf. from 5.3 Reason for Discovery to ascertain the identity for Prospective Defendant r5.2(1)

* Plaintiff unable to ascertain the identity or whereabout of the defendant

* Some other person may have the information or related documents that tends to disclose the information Court order r5.2(2)
Order to attend the court to give the information, or

* examination held before a registrar r5.2(3)(b)
Order to provide the ALL relevant documents

* Order to provide the court all those documents r5.2(3)(a)

5.2 Discovery to ascertain prospective defendant's identity or whereabouts (1) This rule applies if it appears to the court that: (a) the applicant, having made reasonable inquiries, is unable to sufficiently ascertain the identity or whereabouts of a person ("the person concerned" ) for the purpose of commencing proceedings against the person, and (b) some person other than the applicant ("the other person" ) may have information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the person concerned. (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) (a) 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. 1

IV. Matters Preceding Litigation For the Applicant Pre-requisite for money issue

* Deliver the money a reasonable time before the date on which attendance is required r5.2(5)

* If money insufficient, an additional money may be ordered. 5.2 (6) Affidavit Requirement: r5.2(7)

* An application must be supported by an affidavit

* The application, together with a copy of the supporting affidavit, personally served on the other person Applicant may need to provide security for the cost that might be incurred. r5.6 Cost order r5.8

1. The applicant must be unable to sufficiently ascertain the identity or whereabouts of the intended defendant despite having made reasonable inquiries.
What is reasonable is question of fact in all the circumstances.
The availability of other means of ascertainment does not make it unreasonable to claim an alternative remedy under the rule.

* The cost, delay and uncertainty of alternative measures are relevant to the rule's "reasonable inquiries" component.

2.The applicant must show that the respondent to the application "may have information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts" of the prospective defendant. UCPR r 5.3 Reasons for Discovery for Documents from Prospective Defendant: r5.3(1)

* Applicant (plaintiff) have made sufficient inquiries
Still unable to decide whether or not to commence proceedings.

* The prospective defendant may have or have had the relevant documents

* Inspection of them would help to the plaintiff 's decision Affidavit Requirement (for applicant): r5.3(3)

* An application must be supported by an affidavit

* The application, together with a copy of the supporting affidavit, personally served on the other person

1. Whether discretion should be exercised to make the order.

* In certain cases the prospective defendant can put forward material such as commercial sensitivity which would make the court exercise its discretion against making the order the plaintiff seeks.
However, in a case where the defendant does not appear to contest the order and puts forward no such material then it would seem to be seldom that the court would refuse in its discretion to make an order where the plaintiff has demonstrated a need.

2. Whether the order should be subject to conditions.
Generally, r 5.6 and 5.8 apply to make the plaintiff pay for the expense in producing the information requested.

3. Cost order for the discovery hearing.

(4) An order under this rule with respect to any information, document or thing held by a corporation may be addressed to any appropriate officer or former officer of the corporation. (5) A person need not comply with the requirements of an order under subrule (2) (a) unless conduct money has been handed or tendered to the person a reasonable time before the date on which attendance is required. (6) If the other person incurs expense or loss in complying with an order under subrule (2) (a), and the expense or loss exceeds the amount paid to the person under subrule (5), the court may order the applicant to pay to that person an amount sufficient to make good the expense or loss. (7) 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 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. (8) An application for an order under this rule is to be made: (a) if it is made in relation to proceedings in which the applicant is a party, by notice of motion in the proceedings, or (b) in any other case, by summons. (9) This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to claim or crossclaim against a person who is not a party to the proceedings. RTA v Australian National Car Parks (2007) Information Discovery Discover information that enables the plaintiff to determine whether they have a cause of action against the defendant (information discovery) Value of claim uncertain; or Defendant may be impecunious and not worth suing

5.3 Discovery of documents from prospective defendant (1) If it appears to the court that: (a) the applicant may be entitled to make a claim for relief from the court against a person ("the prospective defendant" ) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and (b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and (c) inspection of such a document would assist the applicant to make the decision concerned, the court may order that the prospective defendant must give discovery to the applicant of all documents that are or 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. (2) An order under this rule with respect to any document held by a corporation may be addressed to any officer or former officer of the corporation. (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. (4) This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to decide whether or not to claim or cross-claim against a person who is not a party to the proceedings. Panasonic v Ngage [2006]

5.4 Discovery of documents from other persons (1) The court may order that a person who is not a party to proceedings, but in respect of whom it appears to the court that the person may have or have had possession of a document that relates to any question in the proceedings, must

2 IV. Matters Preceding Litigation

give discovery to the applicant of all documents that are or have been in the person's possession and that relate to that question. (2) 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.

5.5 Discovery and inspection generally Division 1 of Part 21 applies to and in respect of the discovery and inspection of documents the subject of an order for discovery under this Part in the same way as it applies to the discovery and inspection of documents the subject of an order for discovery under that Division.

5.6 Security for costs An order under this Part may be made subject to a condition requiring the applicant to give security for the costs of the person against whom the order is made. Privileged documents not required to be produced. -- exemption clause

* When the applicant and the person for the order are parties in an proceedings.

5.7 Privilege An order under this Part does not operate so as to require the person against whom it is made to produce any privileged document that the person could not be required to produce: (a) if the applicant had commenced proceedings against that person, or (b) if that person had otherwise become a party to proceedings to which the applicant is a party, or (c) if the person had been served with a subpoena for production of the document in proceedings to which the applicant is a party.

5.8 Costs and other expenses (1) On any application for an order under this Part, the court may make orders for the costs of the applicant, of the person against whom the order is made or sought and of any other party to the proceedings. (2) The costs in respect of which such an order may be made include: (a) payment of conduct money, and (b) payments made on account of any expense or loss in relation to the proceedings, and (c) the costs of making and serving any list of documents, and (d) the costs of producing any documents for inspection, and (e) the costs of otherwise complying with the requirements of any order under Division 1 of Part 21, as applying to the discovery and inspection of documents the subject of an order for discovery under this Part.

John Pfeiffer Pty Ltd v Rogerson [2000]:

* They are considered to be a matter of substantive law;

* Application is governed by the law that governs the cause of action (law of the place of the wrongs) Issue:

* Different time period for different cause of action, for example, contract and tort.

* Start from different events / times.

* Time may differ for economic loss /
property damage claims compared with personal injury or death.

* Significant cause of complaints against lawyers. Decided by Limitation Act 1969 (NSW)

Time Limits (Limitation Periods) Limitation periods is the time within which to bring a claim. Rational for Limitation Periods Brisbane South Regional HA v Taylor (1996)

* Where there is delay the whole quality of justice deteriorates

* Destruction of evidence -- whether apparent or not

* Oppressive and cruel to pursue defendant after many years

* People unable to order affairs with lingering potential liabilities

* Public interest demands quick settlement of disputes How are they determined?
LIMITATION ACT 1969 (NSW) 3

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