Preliminary discovery October 3, 2018
- APPEALS – civil procedure – preliminary discovery – Uniform Civil Procedure Rules 2005 (NSW), r 5.3(1) – where application dismissed for failure to satisfy the Court of entitlement to make a claim for relief – whether dismissal involved a determination of the merits of the claim at an interlocutory stage
CIVIL PROCEDURE – preliminary discovery – production of documents concerning negotiations leading to acquisition of company – applicants’ entitlement to disclosure – Uniform Civil Procedure Rules 2005 (NSW), r 5.3(1) – whether discovery may be given of documents relating only to quantum
The appellants sought an order for preliminary discovery under UCPR 5.3(1). By that rule a court, if it appears that a person may be entitled to make a claim for relief against a prospective defendant, may order that the prospective defendant give discovery of all documents that are or have been in his or her possession that relate to the question of whether the applicant is entitled to make a claim for relief.
The primary judge dismissed the application on the basis that the applicants had failed to satisfy him that they may have been entitled to make a claim for relief.
Held (Simpson AJA, McColl and Macfarlan JJA agreeing):
(1) Determination of an application for preliminary discovery under UCPR 5.3 does not involve determination of the merits of any claim for relief an applicant might propound: at .
Hatfield v TCN Channel 9 Pty Ltd (2010) 77 NSWLR 506;  NSWCA 69 and see Pfizer Island Pharmaceuticals v Samsung Bioepis AU Pty Ltd (2017) 351 ALR 103;  FCAFC 193.
The test to be applied under UCPR 5.3 is wider than the test to be applied under the corresponding Federal Court rule; close attention needs to be directed to the language of r 5.3: at .
Hatfield v TCN Channel 9 Pty Ltd (2010) 77 NSWLR 506;  NSWCA 69.
(2) The test to be applied under r 5.3 is whether it appears to the court that a cause of action may exist: at 
(3) Documents of which discovery may be ordered under r 5.3 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: at .