BGC Securities (Australia) Pty Limited v Shillington [2022] NSWSC 611

Legal principles

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.

…..

(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.

“(i) … the applicant may be entitled to make a claim for relief against the prospective defendant;

(ii) … the applicant has made reasonable enquiries to obtain sufficient information to decide whether or not to commence proceedings;

(iii) … having made those enquiries, the applicant is unable to obtain sufficient information to make that decision;

(iv) … the prospective defendant may have or have had possession of a document or thing that could assist in determining whether the applicant is entitled to make a claim for relief;

(vi) … inspection of such a document would assist the applicant to make the decision (that is, the decision whether or not to commence proceedings)”