Discovery: Pre-Action Discovery - Go Fish

What is pre-action discovery?  

A Court may order a person to provide discovery even in circumstances where substantive proceedings have not yet been commenced. This is known as pre-action discovery. Generally, pre-action discovery may be sought in two situations:

1. to identify a potential party; or
2. to enable a party to determine whether to commence or take proceedings against a potential party whose identity is known. 

The purpose of pre-action discovery is to ensure that parties give proper and informed consideration to any decision to commence proceedings rather than wasting costs and the time and resources of the Court in pursuing proceedings which might be utterly hopeless.

Requirements – Discovery from a potential party

Order 26A rule 4 of the Rules of the Supreme Court 1971 (WA) (Rules) provides that the Court may order pre-action discovery from a potential party where the following criteria is satisfied:

1. the applicant may have a cause of action against a person whose description has been ascertained (ie the potential party);
2. the applicant wants to commence proceedings against the potential party or wants to take proceedings against the potential party in the course of an action to which the person is a party;
3. the applicant has made reasonable enquiries but has not been able to obtain sufficient information to enable the decision to be made as to whether to commence or take proceedings;
4. the applicant has not reached a decision about whether to commence or take proceedings; and
5. there are reasonable grounds for believing that the potential party had, has or is likely to have had in its possession, documents that may assist in making the decision whether to commence or take proceedings.

Requirements – Discovery to identify a potential party

Order 26A rule 3 of the Rules provides that the Court may order pre-action discovery from a potential party whose identity is not known where the following criteria is satisfied:

1. the applicant appears to have a cause of action against a person (ie the potential party);
2. the applicant wants to commence proceedings against the potential party or to take proceedings against the potential party in the course of an action to which the applicant is already a party;
3. the applicant has made reasonable enquiries but has not been able to ascertain a sufficient description of the potential party for the purposes of commencing or taking proceedings against the potential party; and
4. there are reasonable grounds for believing that another party (ie a non-party) had, has or is likely to have had in its possession, documents or information that may assist in ascertaining the description of the potential party.

Key considerations and risks

The Court retains a discretion to refuse to make an order for pre-action discovery even if the relevant criteria is satisfied. This makes the outcome of the application less certain. 

A party who seeks pre-action discovery can also incur significant out of pocket expenses. 

Generally, even if a respondent declines to voluntarily give discovery and then is subsequently ordered to provide the documents, they will be entitled to their costs of responding to the application provided that they have not acted unreasonably.

An order for pre-action discovery is often also made on the condition that the applicant gives security for costs (ie an order that requires an applicant to pay into Court an amount of money the Court considers appropriate for the respondent’s costs of the proceedings in the event that the applicant is not successful).

Importantly, a Court will not order pre-action discovery under Order 26A rule 4 in circumstances where the applicant has already decided to commence or take proceedings against the potential party. This means that an applicant must be careful not to disclose that it has decided to commence or take proceedings in any correspondence with the potential party.

Finally, the Court is generally mindful that pre-action discovery can be a significant and arduous task for a respondent and an invasion of privacy. Any application therefore needs to be carefully framed to ensure that the documents requested are actually relevant and no wider than necessary. 

While pre-action discovery can be a very powerful tool, the decision to make any application for pre-action discovery should not be taken lightly. Potential applicants should carefully consider what documents or information are required to assist them so as not to incur unnecessary costs.

Conclusion

There are many factors to consider before making an application for pre-action discovery. If you are contemplating commencing proceedings or you are not sure if you should make an application for pre-action discovery, contact Iain Freeman, Cinzia Donald or Millie Richmond-Scott.