Australia: Pre-litigation discovery in Queensland: is it possible?

Last Updated: 4 May 2016
Article by Mathew Deighton and Lachlan Tassell

In brief - Litigants may seek interrogatories and Norwich Pharmacal orders

Whilst Queensland's Uniform Civil Procedure Rules 1999 (UCPR) do not contain specific rules governing pre-litigation or preliminary discovery, the rules concerning interrogatories and the court's willingness to follow the decision of Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 do in fact provide a platform for preliminary discovery in Queensland.

Queensland courts may allow interrogatories under rule 229 of the UCPR

Potential litigants are often faced with the problem of not knowing the identity of the proper defendant or requiring further information and documents from a third party (such as a bank) to decide whether it is worth pursuing a claim against a potential defendant.

Many Australian jurisdictions have recognised this hurdle to the commencement of legal proceedings and have introduced preliminary discovery procedures. It has long been considered that the Queensland civil system does not allow preliminary discovery, however, that is not the case.

Under rule 229(1) of the UCPR, an applicant may seek an order to deliver interrogatories in order to determine whether proceedings should be pursued against a particular person or entity. In granting such an order, the Court will consider whether the applicant has a case for relief and whether it is necessary in the interests of justice to grant the relief sought. The Court will only allow interrogatories to be delivered if it is satisfied that there is not another reasonably simple and inexpensive way to obtain the information. (See UCPR rule 230(1)(b).)

The purpose of rule 229 was considered in the case of Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd [2004] QSC 63, in which His Honour Justice Douglas said at [21]:

Rule 229(1)(b), however, is not limited to issues already defined in existing pleadings. In that aspect it is more akin to an application for pre-action discovery to identify a defendant;...

Whilst rule 229 of the UCPR does not allow for the production of documents and therefore is not as wide as the pre-trial discovery rules that exist in other states, it still provides an avenue for obtaining identity and information discovery in relation to a prospective defendant.

Norwich Pharmacal orders allow courts to order the production of necessary information

In the Queensland decision of Re Pyne [1996] QSC 128, Shepherdson J, following the House of Lords decision in Norwich Pharmacal Co v Customs and Excise Commissioners, held that where a person is "mixed up" in the tortious acts of another, even through no fault of his or her own, the Court may order the person to provide information about the identity of the tortfeasor, including by disclosure.

Norwich Pharmacal orders usually require the respondent to provide full information and to disclose documents and records as to the identity of the wrongdoers and other information which may assist the applicant to determine who to initiate proceedings against.

By way of example, Colin Biggers & Paisley recently obtained documents from a bank which the applicant believed had been used by a wrongdoer to misappropriate funds. The applicant sought and obtained leave to issue interrogatories and orders compelling the bank to disclose account statements, specimen signatures and associated documentation.

Queensland courts will make Norwich Pharmacal orders providing the applicant can show it has a potential cause of action and that such discovery is necessary to bring justice to the applicant. In making Norwich Pharmacal orders, the courts have the ability to order the production of all information, including documents, necessary for the applicant to decide whether it is worth pursuing a claim.

What should Queensland litigants do?

When faced with the quandary of not knowing a wrongdoer's identity or requiring further information from another party to decide whether it is worth commencing proceedings, potential litigants are able to bring an application seeking:

  • interrogatories from relevant parties, and
  • disclosure of documents and information pursuant to the principles espoused in Norwich Pharmacal

Interrogatories and Norwich Pharmacal orders may identify unknown wrongdoers

Such an application can be of great use in cases concerning misappropriated funds, including circumstances in which the identity of the ultimate recipient is unknown. By issuing interrogatories to a bank and seeking disclosure of certain documents and records, an applicant may be able to ascertain:

  • whether the funds remain in the bank account
  • where the funds have been transferred to
  • who the proper defendants are

Upon receipt of this information, a potential litigant can decide who to bring proceedings against and/or whether to apply to freeze the assets of any person or persons identified as a result of the interrogatories and Norwich Pharmacal orders.

Mathew Deighton
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Mathew Deighton
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