LLB300 Chapter Notes - Chapter 12; 13: Australian Insolvency Law, Nearline Storage, Cimic Group
Chapter 12 – Discovery, Subpoenas and Interrogatories:
Introduction – 12.10:
oMechanisms under UCPR to obtain information:
Preliminary discovery
Notices to produce
Discovery
Subpoenas
Interrogatories
Preliminary Discovery – 12.20:
Order made before commencement of proceedings
UCPR extended the ambit of orders to assist parties to determine whether they
should commence an action (r 5.3 and 5.4)
Can be used to determine the identity or whereabouts of a prospective
party – r 5.2
oPreliminary Discovery for “Identity or Whereabouts” – 12.30:
Order can be made where:
P has made “reasonable enquiries” and is “unable to sufficiently ascertain
the identity or whereabouts of a person”
Some person “may have information, or may have or have had possession
of a document or thing, that tends to assist”
Order can be:
Order for another person to attend court for “examination”
Order that the other person must “give discovery” or “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”
oPreliminary Discovery for Deciding Whether to Commence Proceedings –
12.40:
Courts may order a prospective D to provide all documents in their possession
relating to the applicant’s entitlement to relief WHERE (UCPR r 5.3):
P “may be entitled to make a claim”
P has made “reasonable enquiries” and is “unable to ascertain sufficient
information”
Inspection of a document or thing would assist the applicant in deciding
whether to commence proceedings
Discovery can also be ordered against a non-party
oProcedure – 12.50:
Judge has discretion to make an order under Part 5 of UCPR
Proceedings not yet commenced – sought by filing a summons and supporting
affidavit
Must be personally served
Orders may be made against any person (UCPR r 5.8)
Roads and Traffic Authority of NSW v Australian National Car Parks
(2007):
Considered UCPR r 5.2
o“The preliminary discovery rule contains threshold requirements. But,
subject to them, an order rests upon the favourable exercise of a
judicial discretion…”
General principles:
oRequirement to establish a prima facie case was removed in 1974
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oTwo threshold requirements:
“First, the applicant must be unable sufficiently to ascertain the
identity or whereabouts of the intended defendant despite having
made reasonable enquiries.”
“Secondly, the applicant must show that the respondent to the
application “may have information, or may have had possession of
a document or thing, that tends to assist in ascertaining the identity
or whereabouts” of the prospective defendant.”
o“identity or whereabouts” is given an extended definition in r 5.1
o“the words “may” and “tends to assist: in r 5.2(1)(b) show that the
applicant does not have to establish in advance that the desired
information, document or thing will necessarily reveal the identity
or whereabouts of the prospective defendant. … The information,
document or thing need not be the last piece in a jigsaw puzzle.”
oApplicant must obtain a favourable exercise of judicial discretion
Roads and Traffic Authority of NSW v Care Park Pty Ltd [2012]:
THREE possible interpretations of Rule 5.2:
oA. There are two threshold requirements – reasonable enquiries +
may have information to assist (in the realm of discretion)
PREFERRED by Young JA
oB. In addition to the matters in A, the applicant must show they
have the purpose of commencing proceedings
“suffers from the problem that it promotes an adverbial phrase into
a requirement” (Young JA)
PREFFERED by Barrett JA
oC. Plaintiff must have certain details
“Interpretation C may be the nearest to the literal meaning of the
Rule… However, there are a number of reasons why I do not
favour it.” (Young JA)
Flavour of the authorities is that it should be applied
beneficially, purposively and not technically
The rule focuses on a desire to bring proceedings
Runs contrary to the whole concept behind the rule
Barrett JA:
o“The “purpose of commencing proceedings” is thus the yardstick
against which sufficiency of information in the applicant’s possession is
measured, not something that the applicant must have.”
oDESIRE – “bona fide desire” rather than “capricious desire” – Midland
Railway Co v Robinson (1887)
o“It follows, in my opinion, that the correct construction of the rules is
Young JA’s “Interpretation B” but with “desire to commence”
substituted for “purpose of commencing”.”
RULE – B. In addition to the matters in A, the applicant must show they
have the desire to commence proceedings
oAll other judges agreed with Young JA’s orders, for the reasons given
by Barrett JA
Hatfield v TCN Channel Nine (2010):
Preliminary discovery:
oFor P to ‘appear’ to ‘may be entitled’ to make a claim – ‘it is not
necessary for the applicant to show a prima facie or pleadable case’
oIt is sufficient for their to be reasonable cause to believe the applicant
may have a right of action
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Reasonable enquiries:
o‘What constitutes “reasonable inquiries” is a question of fact, to be
considered in all the circumstances of the particular case, which
includes the relationship (if any) between the applicant and the
prospective defendant…’
Must balance the interests of justice
Rinehart v Nine Entertainment [2015]:
Applicant must SHOW that they have made reasonable inquiries to obtain
the information
Court has discretion
Defendant argued – practical futility; prospect of succeeds was the same
regardless of whether a pre-publication injunction was sought for
defamation; importance of free speech; identified detriment
Ordered preliminary discovery –
o‘the interests of justice… weighed in favour of the order that Mrs
Rinehart through her lawyers has put: that there is a possibility of a
serious defamation that they cannot determine whether they have a
claim for relief unless they see material…’
Notices To Produce – 12:110:
Act in a similar way to subpoena but do not need to be filed in Court
Inspection needs to be provided within a reasonable time
Reasonable time is taken to be 14 days
oPenrith Rugby League Club v Brown [2004]:
Sent a Notice to Produce ‘any other document’
Term ‘other’ gives a general flavour to a specific document
Words “clearly identified” – requires ‘a pointing out in a manner that is
distinct and free from confusion’
Notice to Produce was valid in this matter as an affidavit of the other side
identified the document within the meaning of the rule
Discovery of Documents – 12.150:
Enables parties to obtain documents from one another
Discovery of specific documents can occur by issuing a Notice to Produce that
specifies the documents – UCPR r 20.10
Discovery process – one party seeking documents within a class or classes or
documents from the other party
Intended to promote a fair trial – Percy v General Motors Holden [1975]
Reduces surprise
Occurs after pleadings have closed so parties are aware of the issues
oProblems Caused by Discovery Process:
Major contributor to COSTS
Managing Justice: A Review of the Federal Civil Justice System (ALRC,
1999):
Singled out as the procedure most open to abuse, most costly, and most in
need of the Court’s supervision and control
Problems arise from parties responses to requests
oMay hide documents; or
oMay volunteer vast numbers of documents as a mechanism to hide an
incriminating document that might be lost in the detail
Commission’s deliberations supports flexible and effective controls
Seven Network v New [2007]:
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find more resources at oneclass.com
Document Summary
Introduction 12. 10: mechanisms under ucpr to obtain information: Ucpr extended the ambit of orders to assist parties to determine whether they should commence an action (r 5. 3 and 5. 4) Can be used to determine the identity or whereabouts of a prospective party r 5. 2: preliminary discovery for identity or whereabouts 12. 30: P has made reasonable enquiries and is unable to sufficiently ascertain the identity or whereabouts of a person . Some person may have information, or may have or have had possession of a document or thing, that tends to assist . Order for another person to attend court for examination . Courts may order a prospective d to provide all documents in their possession relating to the applicant"s entitlement to relief where (ucpr r 5. 3): P may be entitled to make a claim . P has made reasonable enquiries and is unable to ascertain sufficient information .
