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:
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.
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:
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:
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.
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.