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  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
1. The applicant desires to bring proceedings against a
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
2. The applicant lacks information as to the
person's identity or whereabouts, sufficient to be able to
commence proceedings against them, despite reasonable
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.
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 bulletin.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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