Before commencing court proceedings, a claimant will need to ascertain the identity of the person to sue and whether they have a claim against them.

In commercial disputes the task can be complicated where the claimant has incomplete information and there are several persons involved, including innocent third parties.

For example, in cases of misappropriated funds, a prospective claimant may require information to identify the recipient and location of the funds and the accounts involved in the transfer of those funds.

To assist the claimant in its deliberations, a claimant may be able to obtain pre-litigation disclosure. We discuss below some of the principles and procedures.

Avenues for pre-litigation disclosure in state courts in Queensland

As a threshold issue, a claimant will need to consider whether the Federal Court will have jurisdiction or whether the application needs to be made in a state court.

Unlike the Federal Court, there is no dedicated regime in state courts in Queensland for pre-litigation disclosure. This means that there is some uncertainty as to the precise scope of the Queensland courts’ jurisdiction to order pre litigation disclosure.

However, in the state courts it is generally accepted that there are two bases on which a court might order disclosure before court proceedings commence. These are under:

  • rule 229 of the Uniform Civil Procedure Rules 1999 (Qld), which provides for the delivery of interrogatories
  • the inherent jurisdiction of the Supreme Court to order preliminary disclosure.

The delivery of interrogatories provides a prospective claimant with a limited means of disclosure, by allowing a them to put a series of questions to a person that are designed to elicit relevant information from that person.

By comparison with interrogatories, the Supreme Court’s inherent jurisdiction arguably provides a wider basis to make orders for the disclosure of information and documents in a person’s possession or control.

However, in both cases, disclosure can be ordered both to identify a defendant, and to provide the necessary information to allow the prospective claimant to determine whether they have a claim.

A respondent to an application for pre-litigation disclosure might be the prospective defendant, or an independent third party in possession of relevant information or documents. The role of the respondent to the application is a relevant factor for the courts.

What are the key considerations?

To obtain pre-litigation disclosure in the Queensland state courts, a prospective claimant will generally need to establish that the disclosure is:

  • material to litigation that can be instituted in Queensland
  • in the administration of justice, in the sense that it is necessary in order to provide the applicant with an effective remedy.

Where a prospective claimant is relying on the Court’s inherent jurisdiction, they also need to establish that the party from whom the disclosure is sought is not a ‘mere witness’. This means that the person from whom disclosure is sought must be mixed up in the relevant wrongdoing, innocently or otherwise, such that they can identify the wrongdoer.

While the courts have a broad jurisdiction to order pre-litigation disclosure, a key consideration is whether the disclosure is necessary and appropriate in the circumstances of the case.

If the party seeking the order for pre-litigation disclosure is already able to commence proceedings and is simply seeking to bolster their case, the courts are unlikely to order disclosure.

Similarly, the courts may consider the extent of the enquiries made by the party seeking pre-litigation disclosure and the reasonableness of those enquiries in deciding whether to make an order. A party who has made little independent enquiries before bringing an application for pre-litigation disclosure may not be able to satisfy the courts that it is in the interests of justice to order disclosure.

Practical comments

The courts have recognised that orders for pre-litigation disclosure are exceptional, and that parties to a dispute do not ordinarily owe any duty of disclosure to each other outside of existing court proceedings.

Parties bringing or opposing pre-litigation disclosure applications will need to carefully consider the legal and factual basis on which the application is based.

Prospective claimants considering an application for pre-litigation disclosure should consider:

  • whether they have made appropriate enquiries, including whether they have sent appropriately drafted correspondence seeking the voluntary disclosure of the information or documents
  • the nature of their case and the jurisdiction in which they intend to institute proceedings, as a Queensland court may decline to order disclosure if the claim is not intended to be made in a Queensland court
  • the nature and scope of the information or documents sought to be obtained and the relevance of that information or those documents to their case.

Respondents to an application for pre-litigation disclosure, whether existing or foreshadowed, should consider:

  • the nature and scope of the information or documents sought, as a Queensland court will not allow a ‘fishing expedition’ by the prospective claimant
  • whether the information or documents are confidential or the subject of legal professional privilege or privilege against self-incrimination
  • whether there is any scope to negotiate a document exchange protocol
  • whether they are a prospective defendant or simply a third party in the possession of relevant documents or information.