Pre-action disclosure obligations in Queensland have historically been unenforceable until proceedings are issued. This has now changed following the insertion of rules 208A-208G into the Uniform Civil Procedure Rules 1999 (Qld), current as of 10 December 2021.

The new rules allow plaintiffs to make pre-action disclosure requests (and ultimately applications) for disclosure relating to a potential action. Although, presently this is only the case where the value of the claim is likely to fall within the jurisdiction of the Supreme Court of Queensland.

That’s not to say that plaintiffs won’t attempt to use this as a costs generator whilst they gather their liability evidence, which could potentially result in a wave of pre-action disclosure applications and place further pressure on prospective defendants.

However, as the rules have only just come into effect, we are yet to see their practical application. In an attempt to gaze into the future, analysis of the comparative provisions in other jurisdictions will be a helpful tool in projecting how things might play out in Queensland.

In New South Wales, the comparative provisions are contained in part 5 of the Uniform Civil Procedure Rules 2005 (NSW). The authority on this issue is the Court of Appeal decision of O’Conner v O’Conner1, where the respondent was ultimately ordered to provide discovery to the appellant pursuant to rule 5.3 – which relates to discovery of documents from a prospective defendant. Whilst the primary judge dismissed the application on the basis that the applicants had failed to satisfy him that they may have been entitled to make a claim for relief, it was held on appeal that:

  • Determination of an application for preliminary discovery under r 5.3 does not involve determination of the merits of any claim for relief an applicant might propound2;
  • The test to be applied under r 5.3 is wider than the test to be applied under the Federal Court rule, with close attention to be directed to the language of the rule. Under r 5.3, it must be considered whether it appears to the court that a cause of action may exist3; and
  • Documents for which discovery may be ordered pursuant to r 5.3 are not limited to those relating to the entitlement to make a claim but extend to documents going only to the quantum of a potential claim4.

These principles were reaffirmed in the decision of Arnaout v Arnaout5, where Lindsay J made an order for preliminary discovery, on certain terms. Interestingly, Lindsay J remarked that, in reference to r 5.3:

“A determination that an application for preliminary discovery is an abuse of the processes of the court is not a necessary foundation for a decision, upon an exercise of discretion, to dismiss, or limit a grant of relief upon, an application for preliminary discovery.”6

In O’Conner the first and second respondents were ordered to pay the appellants costs in both proceedings. However, in Arnaout Lindsay J ordered the plaintiff to pay the costs of the defendant on the ordinary basis, whilst also reserving the plaintiff’s entitlements (if any) to claim the costs payable as an expense recoverable as costs in any future proceedings, remarking that:

“If the plaintiff does, in the fullness of time, commence substantive proceedings against the defendants, or either of them, it should be open to the plaintiff in those proceedings to apply to the Court, to the extent that any application may be necessary, for orders recognising that costs payable in these preliminary discovery proceedings should be dealt with as an expense necessarily incurred by the plaintiff in pursuit of what, by that stage, will have become the substantive proceedings.”7

The costs consequences of such orders appear reasonable, in that the plaintiff is to bear their costs in the first instance, however, following successful proceedings such expenses may be recoverable.

Given that rules 208A-208G of the UCPR Qld are in their infancy, it is only a matter of time before they are the subject of judicial consideration by the Supreme Court. Until then, it is important to give greater consideration to the pre-action requests made by prospective plaintiffs, particularly given that prior to the insertion of the rules such requests have generally been dealt with restrictively.