Application for pre-action discovery pursuant to O 26A r 4 of the Rules of the Supreme Court 1971 (WA)
Potential causes of action against defendant for liability as a volunteer, knowing receipt of trust property and unjust enrichment
Whether court's power to make orders sought enlivened
Quick Take
1Where a prospective plaintiff holds information from foreign proceedings that is internally inconsistent or has been judicially criticised as unreliable, it is reasonable for the plaintiff to seek pre-action discovery to independently verify that information before deciding whether to commence proceedings, rather than being required to accept or reject it at face value.
2Pre-action discovery under O 26A r 4 extends to documents relevant to defences or responses available to the prospective defendant, including whether consideration was given for funds received, as the possible existence of defences typically forms part of a litigant's calculus in assessing whether to commence substantive proceedings.
3A prospective plaintiff's representation to a foreign court that it intends to bring civil proceedings in Australia, made to obtain a carve-out from undertakings restricting use of information obtained in those foreign proceedings, does not of itself establish that the plaintiff has already decided to sue and thereby defeat the jurisdictional requirement that it lacks sufficient information to make that decision.
