In December 2021, the Queensland government amended the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) to include a new rule headed ‘Orders for preliminary disclosure’.[1]

Under the new rule, the Court may order that a ‘prospective defendant’ disclose a document to an applicant or produce a document to the Court before the commencement of substantive proceedings. These amendments only apply to the Supreme Court of Queensland and do not extend to the District or Magistrate Courts.

Whilst rules relating to preliminary disclosure are new to Queensland, similar laws have been in place in other jurisdictions around Australia for some time.[2]

Preliminary disclosure cannot be used to ‘build up’ a case which an applicant has already decided or could decide to bring.[3] Accordingly, an applicant seeking preliminary disclosure must disclose what information he or she already has relevant to making a decision whether or not to commence proceedings.[4]

An applicant cannot bring an application for preliminary discovery if he or she has already brought proceedings against the prospective defendant.[5] That is to say, this prospective application for preliminary disclosure must be filed before any other proceedings are commenced.[6]

Rule 208D is, at present, yet to be considered in a published Queensland judgment. Accordingly, the Courts look to the numerous interstate and federal authorities to shed some light on how to interpret the rule. It is important to note that such authorities are merely persuasive and do not bind the Queensland Courts.

With that in mind, the Supreme Court of New South Wales has identified several criteria about how to claim an entitlement to preliminary disclosure:-

1. the threshold is “low” [7] (or “very low” as described by the Federal Court)[8] for the applicant, and it is enough to show that he or she may have a right to obtain relief;[9]
2. although mere assertion of a case against a prospective defendant is insufficient to warrant an order for preliminary discovery, there is no requirement than an applicant establish a prima facie or pleadable case for relief;[10]
3. it is not necessary for an applicant to specify with precision the cause of action he or she proposes beyond the particularisation of the nature of the relief in contemplation;[11]
4. a determination of an application for preliminary disclosure does not involve a determination of the merits of any claim for relief the applicant might propound;[12]
5. information bearing upon an applicant’s decision whether or not to commence proceedings against a prospective defendant may include questions such as: –
   1. whether there exists any defences that might defeat a claim; and
   2. whether a claim would potentially be worthwhile in the sense of yielding an award of damages or other order sufficient to justify commencing proceedings.[13]

An applicant should also bear in mind rule 208E, which provides that an order for preliminary disclosure may be subject to a condition that the applicant give security for costs and expenses of the person against whom the order is to be made.

We have engaged with several successful formal requests for preliminary disclosure in respect of substantial disputes, most recently relating to a potentially defamatory media publication on national television.

If you require any assistance or have any questions concerning preliminary disclosure, please do not hesitate to contact our team of specialist litigators for an obligation free consultation.

[1] Uniform Civil Procedure (Preliminary Disclosure) Amendment Rule 2021 (SL 184 of 2021) s 7.

[2] For example, for New South Wales, see Uniform Civil Procedure Rule 2005 (NSW) r 5.3; for Federal, see Federal Court Rules 2011 (Cth) r 7.22; for Victoria, see Supreme Court (General Civil Procedure) Rule 2015 (Vic) r 32.05.

[3] Morton v Nylex Ltd [2007] NSWSC 562, [33].

[4] Arnaout v Arnaout [2019] NSWSC 565, [33] (Lindsay J); as to the requirement for an affidavit in support which could be used to disclose this information, see Uniform Civil Procedure Rules 1999 (Qld) r 208D(3)(a).

[5] Nine Network Australia Pty Ltd v Ajaka (2022) 403 ALR 106; see also Brydon v Australian Rail Track Corp Ltd [2014] NSWSC 1560, [12] – [13], [26].

[6] This is the case even if the proceedings have been filed but not yet served: Wang v Cai [2021] NSWSC 1162, [234].

[7] Arnaout v Arnaout [2019] NSWSC 565, [32] (Lindsay J).

[8] Boyd v Automattic Inc [2019] FCA 86, [49].

[9] Hopper v Kirella (1999) 96 FCR 1, p 10 [33].

[10] Arnaout v Arnaout [2019] NSWSC 565, [32] (Lindsay J); see also Levis v MacDonald (1997) 75 FCR 36, pp 41, 44; cited by Colagrande v Telstra Corporation Ltd [2020] FCA 1595, [12]; see also Ajaka v Nine Network Pty Ltd (No 2) [2022] NSWSC 765.

[11] Arnaout v Arnaout [2019] NSWSC 565, [32] (Lindsay J); cf Allphones Retail Pty Ltd v Australian Competition and Consumer Commission (2009) 259 ALR 354, [54] where it was said that there must be a cause of action known to the law which has a real, as opposed to fanciful, prospect of the grant of some remedy.

[12] Arnaout v Arnaout [2019] NSWSC 565, [32] (Lindsay J).

[13] Ibid.