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How to Obtain Documents from Possible Defendants Before Court Proceedings

There are many considerations to take into account before commencing Court proceedings.  One of the key considerations is whether or not the claim has sufficient merit to convince a Court to grant the relief that you seek.  In some situations an analysis of key documents is required as part of the assessment of the prospects of success.  There are circumstances however where a potential plaintiff does not have access to those key documents but has a reasonable belief that the potential defendant may have had one or more of those documents in its possession.  In that scenario, Rule 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) provides a process to ask the Court to grant orders that such documents be disclosed before proceedings are commenced.

In summary, Rule 5.3.1 specifies that if it appears to the Court:

  • the applicant (potential plaintiff) may be entitled to make a claim;
  • but after reasonable enquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the potential defendant; and
  • the prospective defendant may have or have had in the past possession of a document or thing; and
  • that document or thing may assist the applicant in determining whether it is entitled to claim relief; and
  • an inspection of that document would assist the applicant in making a decision whether to commence proceedings,

then the court may order preliminary discovery.

Any such application must be supported by an affidavit setting out the facts relied on and specifying the kinds of documents being requested; and both the application and the supporting affidavit are to be served personally on the recipient.

It is important to note that the test is not whether there are actually prospects of success because the application is not a determination of the merits of the proposed claim[1].  It is enough to show that “It appears to the Court” that the applicant “may be entitled to make a claim for relief from the Court” against the proposed defendant.

This application is not available in the Small Claims Division of the Local Court. 

To discuss potential disputes and how to obtain the documentation necessary to prove your case, please contact our litigation specialists, Kristy Nunn and David Collins.

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