Application for pre-action discovery pursuant to Rules of the Supreme Court 1971 (WA) O 26A r 4
Whether bankrupt has standing to bring action for pre-action discovery
Turns on own facts
Quick Take
1A bankrupt's application for pre-action discovery must be assessed by reference to the substantive causes of action it is a gateway to; where those prospective claims sound in financial loss (breach of statutory duty, misfeasance in public office, deceit, equitable fraud) rather than damages estimated by reference to pain felt in respect of mind, body or character, they vest in the trustee in bankruptcy and the bankrupt lacks standing under s 116(2)(g) of the Bankruptcy Act 1966 (Cth).
2An application for pre-action discovery under RSC O 26A r 4 requires evidence demonstrating on an objective basis that all facts necessary to establish a cause of action may be able to be established; mere assertion, conjecture or suspicion — including theories of conspiracy or fraud on the court unsupported by tangible evidence — is insufficient to meet the threshold jurisdictional requirement.
3Commencing a fresh proceeding seeking substantially the same relief as an earlier proceeding dismissed on the merits (including on appeal) constitutes an abuse of process, and applications to amend or re-open that seek to re-litigate matters previously determined adversely to the applicant will be refused.
