Civil Procedure Update – Pre-action discovery Tom Anderson NT Supreme Court Rules – Order 32 SCR 32.03 Discovery to identify a defendant SCR 32.07 Discovery from non-party SCR 32.05 Discovery from prospective defendant Where: (a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description he has ascertained; (b) after making all reasonable inquiries, the applicant has not sufficient information to enable him to decide whether to commence a proceeding in the Court to obtain that relief; and (c) there is reasonable cause to believe that the person has or is likely to have or has had or is likely to have had in his possession a document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist him to make the decision, the Court may order that the person shall make discovery to the applicant of a document of the kind described in paragraph (c). The 32.05(a) requirement When is there “reasonable cause to believe”? objective test (actual belief insufficient) must be established by evidence (on an interlocutory application) must be more than suspicion, a hunch, conjecture, a possibility, an allegation, an assertion, “a flimsy foundation” each element of the potential cause of action uncertainty as to elements “has or may have the right to obtain relief” Authorities Scarletti Pty Ltd v Millwood Printing Co Pty Ltd, unreported, VSCA, 28 July 1994 (BC9400965) NTA v GRD Kirfield Ltd & Anor  NTCA 01 John Holland Services Pty Ltd v Terranora Group Management Pty Ltd  FCA 679 St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147;  FCA 1360 Benchmark Certification Pty Ltd v Standards Australia International Ltd & Anor (2004) 212 ALR 464;  FCA 1489 Waller v Waller  WASCA 61 Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506;  NSWCA The 32.05(b) requirement When have “all reasonable inquiries” been made? will depend on the particular circumstances prescribes an objective standard (including as to sufficiency) requires “a reasonable exhaustion of alternative sources of information” (CGU Insurance Ltd v Malaysia Int Shipping Corp Berhad (2001) 187 ALR 279;  FCA 1223) The 32.05(b) requirement (cont) What is “sufficient information”? applicant must disclose the information it does have (Morton v Nylex Ltd  NSWSC 562) information may be required to decide “whether to commence a proceeding”, even if application already has sufficient information to establish a cause of action information as to defences or quantum (Quanta Software International v Computer Management Services (2000) 175 ALR 536;  FCA 969 The 32.05(c) requirement must be reasonable cause to believe the person is likely to have a document, and, inspection would assist to make the decision respondent may put on evidence (United Voice v Accolade Wines Australia Ltd  FCA 285) The residual discretion The Court retains a residual discretion – “may order that the person shall make discovery …” Court likely to limit any order to the documents necessary to enable the applicant to decide – “… of a document of the kind described in paragraph (c)” may be exercised against an applicant in a borderline case (Benchmark Certification, Hatfield) Costs SCR 32.11 Costs (1) On an application under this Order the Court may make an order for the costs and expenses of the applicant, of the person against whom the order is made or sought and of a party to the proceeding, including the costs of making and serving an affidavit of documents, of producing a document for inspection in accordance with rule 32.09 or of complying with a direction given under rule 32.10. (2) The Court may make an order under this Order on condition that the applicant give security for the costs and expenses of the person against whom the order is made. Costs (cont) Vic and WA authorities suggest that even an unsuccessful respondent may be awarded its costs of the application (Schmidt v Won  3 VR 435; Kallitsas v Emerson Finance Pty Ltd & Ors  VSC 180; Waller v Waller  WASC 51; J & A Vaughan Super Pty Ltd v Becton Property Group Limited  FCA 340) This will not necessarily be the case in the NTSC, particularly if the applicant deploys PD6 of 2009 (Trepang Services Pty Ltd v Sodexo Remote Sites Australia Pty Ltd  NTSC 23) A respondent is more likely to get its costs of production so as not to be left out of pocket if not pursued further Questions?