Digging for gold or a fishing expedition? Everything you need to know about the new preliminary disclosure process in Queensland

Until recently, and unlike the Federal Court, there has been no dedicated regime in Queensland for preliminary disclosure. As a result, there has always been some uncertainty as to the precise scope of the Queensland court's jurisdiction to order pre-litigation disclosure.

Key points

1. The purpose of pre-litigation disclosure is to allow a party to obtain sufficient information, to consider whether the elements of the cause of action can be made out and there are sufficient particulars to support a claim.
2. The process of pre-litigation disclosure assists parties to obtain further information in circumstances where they are uncertain whether they have a right to relief before deciding to start a proceeding.
3. The new rules will allow a plaintiff to make pre-action disclosure in the Supreme Court of Queensland, for disclosure relating to a potential action.

Amendment to the Uniform Civil Procedure Rules

1. On 9 December 2021, the Uniform Civil Procedure (Preliminary Disclosure) Amendment Rule 2021 (Amendment Rule)amended the Uniform Civil Procedure Rules 1999 (Qld) (UCPR)to introduce the preliminary disclosure (or pre-litigation disclosure) process in Queensland.
2. These amendments only apply to the Supreme Court of Queensland and do not extend to the District or Magistrate courts.¹
3. Rules 208A to 208G of the UCPR introduce into the UCPR, a regime whereby:

4. (a) an applicant may seek orders for preliminary disclosure to ascertain the whereabouts of prospective defendants in a matter;² and

   (b) the Court may make orders for preliminary disclosure.³

Preliminary disclosure to ascertain the identity of a defendant

4. A party can apply to the Court pursuant to rule 208C of the UCPR to seek certain orders for preliminary disclosure where it is unsure of the identity or proper description of a potential defendant prior to the commencement of proceedings.
5. The Court may make such an order if it appears to the Court that:

6. (a) the applicant may have a right to relief against the prospective defendant;⁴

   (b) the applicant has made reasonable inquiries but is unable to sufficiently ascertain the identity or whereabouts of the prospective defendant;⁵ and

   (c) another person may have information, possession, or control of a document or other information that may assist the party with ascertaining the identity or whereabouts of the prospective defendant.⁶

Preliminary disclosure to determine whether to start a proceeding

6. Pursuant to rule 208D of the UCPR, the Court may make orders for disclosure of a document(s) or production of the document(s) to the Court. The Court must, however be satisfied that:

7. (a) the applicant may have a right to relief against the prospective defendant;⁷

   (b) it is impracticable for the applicant to start a proceeding against the prospective defendant without reference to a document;⁸

   (c) there is an objective likelihood that the prospective defendant has, or is likely to have, possession or control of the document;⁹

   (d) inspection of the document would assist the applicant to make the decision to start the proceeding;¹⁰ and

   (e) the interests of justice require the order to be made.¹¹

7. An application for an order for disclosure or production to the Court must be supported by an affidavit stating the facts on which the applicant relies¹² and the document in respect of which the order is sought.¹³ That application is required to be served personally on the prospective defendant.¹⁴
8. Practically, such an application is to be commenced by an originating application.¹⁵

Practical considerations

9. Preliminary disclosure in the state Courts is undoubtedly a welcome change. However, as the preliminary disclosure provisions are new, the application of this new regime has not been considered by the Court and there is otherwise limited guidance on how the rules will operate in Queensland.
10. Helpfully, there are comparable provisions in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR NSW) concerning preliminary disclosure. The New South Wales courts have considered the comparative UCPR NSW provisions on numerous occasions, and have provided useful guidance which may assist with understanding how their Queensland counterparts will operate under the UCPR.
11. In particular, the New South Wales courts have relevantly commented that:

12. (a) the test to be applied under the UCPR NSW is the 'appears to the court' test, and is wider than the test originally introduced in the Federal Court, which requires that 'there is reasonable cause to believe that the applicant has, or may have, the right to obtain relief';¹⁶

    (b) accordingly, an application for preliminary discovery under UCPR NSW does not involve a determination of the merits of the claim, rather whether it appears to the court that a cause of action may exist. However, a mere assertion of the claim will not be sufficient;¹⁷

    (c) preliminary disclosure only extends to information that is necessary, but no more than that which is reasonably necessary, to overcome the insufficiency of information already possessed by the plaintiff;¹⁸

    (d) the question is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective defendant [but]... whether the applicant has sufficient information to decide whether to start a proceeding. Accordingly, an applicant for preliminary disclosure may be entitled to disclosure to determine what defences are available to the respondent and the strength of those defences;¹⁹ and

    (e) the documents of which discovery may be ordered are not limited to those relating to the entitlement to make a claim, but extend to documents going only to the quantum of a potential claim.²⁰

12. Notably, however, rule 208D of the UCPR does not require that an applicant has made all 'reasonable inquiries' before seeking an order for preliminary disclosure, in order to determine whether an applicant has sufficient information to commence proceedings against a prospective defendant.
13. This requirement to make 'reasonable inquiries' is an important element of the UCPR NSW counterpart. Accordingly, it will be interesting to see the Court's approach in Queensland and its expectations as to what actions a party will be expected to take (if any), to obtain the required information before making an application for preliminary disclosure to obtain that information from a prospective defendant.
14. In any event, like the Federal Court and New South Wales courts, the Supreme Court of Queensland will no doubt ensure that the new provisions are not taken advantage of by parties attempting to embark on a fruitless fishing expedition.
15. It is important that parties ensure consideration is given to the application of these new rules in the UCPR. Rules 208A to 208G of the UCPR are likely to be the subject of judicial consideration of the Supreme Court of Queensland.

Footnotes

¹ r 208A of the Uniform Civil Procedures Rules 1999 (Qld).

² r 208C of the Uniform Civil Procedures Rules 1999 (Qld).

³ r 208D of the Uniform Civil Procedures Rules 1999 (Qld)

⁴ r 208C(1)(a) of the Uniform Civil Procedures Rules 1999 (Qld).

⁵ rule 208C(1)(b) of the Uniform Civil Procedures Rules 1999 (Qld).

⁶ rule 208C(1)(c) of the Uniform Civil Procedures Rules 1999 (Qld).

⁷ rule 208D(1)(a) of the Uniform Civil Procedures Rules 1999 (Qld).

⁸ rule 208D(1)(b) of the Uniform Civil Procedures Rules 1999 (Qld).

⁹ rule 208D(1)(c) of the Uniform Civil Procedures Rules 1999 (Qld).

¹⁰ rule 208D(1)(d) of the Uniform Civil Procedures Rules 1999 (Qld).

¹¹ rule 208D(1)(e) of the Uniform Civil Procedures Rules 1999 (Qld).

¹² rule 208D(3)(a)(i) of the Uniform Civil Procedures Rules 1999 (Qld).

¹³ rule 208D(3)(a)(ii) of the Uniform Civil Procedures Rules 1999 (Qld)

¹⁴ rule 208D(3)(b) of Uniform Civil Procedures Rules 1999 (Qld).

¹⁵ see rule 208D(4)(b) of Uniform Civil Procedures Rules 1999 (Qld). That is unless the application relates to an existing proceeding to which the applicant is a party. If that is the case the application can be made by application in that proceeding (see rule 208D(4)(a)).

¹⁶ O'Connor v O'Connor [2018] NSWCA 214 at [90].

¹⁷ Athena Investment Holdings LLC v AJ Lucas Group Ltd [2013] NSWSC 1837; Morton v Nylex Ltd [2007] NSWSC 562 [25].

¹⁸ Glencore International AG v Selwyn Mines Ltd (2005) FCA 801.

¹⁹ St George Bank Ltd (at [26](f)) (emphasis in original); see also Morton v Nylex (at [33]).

²⁰ O'Connor v O'Connor [2018] NSWCA 214 at [90].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.