12 Apr 2012

Pre-litigation discovery to identify or locate a defendant - NSW Court of Appeal explains the rules

by Dean Jordan, Michael Legg, Mark Wiese

The NSW Court of Appeal has explained the key matters that an applicant for an order to compel disclosure of information that assists in identifying or locating a prospective defendant to proposed proceedings must prove.

In some circumstances a person or a company may have a cause of action but be unable to identify or locate the prospective defendant. To address this difficulty, and other pre-litigation difficulties arising from a lack of information, the Uniform Civil Procedure Rules 2005 provide in Part 5 for "preliminary discovery and inspection".

Preliminary discovery and inspection to reveal a person's identity or whereabouts is often given the shorthand "identity discovery", and it can include examination of persons in court as well as discovery of documents.

However, just what the rules require of an applicant for identity discovery has repeatedly been the subject of litigation. In a recent case (Roads and Traffic Authority of New South Wales v Care Park Pty Limited [2012] NSWCA 35), the NSW Court of Appeal convened a bench of five judges to finally decide the issue. Justice Barrett gave the leading judgment and he explained that the power of the court to order identity discovery depends on three findings:

1.  The applicant desires to bring proceedings against a person.

Such a "desire" must be a bona fide and not merely a capricious desire. It must be genuinely held and objectively based. However, Barrett JA said that "a desire may be characterised as something less fixed and certain than an intention or a purpose. A person with an intention or purpose has progressed to a degree of determination stronger than that of a person with only a desire".

A desire that is conditional, such that it will cease to exist upon satisfaction of a demand or upon receipt of some other pertinent information, is sufficient to satisfy this requirement. Of course, a person would rarely have an unqualified desire to sue.

2.  The applicant lacks information as to the person's identity or whereabouts, sufficient to be able to commence proceedings against them, despite reasonable enquiries.

Whether the applicant has made reasonable enquiries is a question of fact in all the circumstances, taking into account the cost, delay and uncertainty of any alternative lines of enquiry that may be available.

3.  The person from whom the applicant seeks information has that information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the person concerned.

The person need only have information that "tends to assist" in identifying the prospective defendant. This could include the details of a third person from whom further information might be sought. The information sought must "relate to" the identity or whereabouts of the relevant person - it need not necessarily be the contact details of that person.

Pre-litigation identity discovery is potentially a powerful tool to assist a person with a cause of action, but who cannot identify or locate the defendant. The court's power depends on findings that are not difficult for an applicant to prove. The discretion of the court to make the order would ordinarily be exercised in favour of an applicant acting reasonably. For that reason, a person or a company with a cause of action should not desist from proceeding due only to a lack of information concerning the defendant's identity or whereabouts.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.