Federal Court of Australia
JUDGMENT No. LE 28 IL 228
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 570 of 1998
BETWEEN: WARWICK GEORGE STRAUSS MALOUF APPLICANT
AND: JOHN GEORGE STRAUSS MALOUF FIRST RESPONDENT
PAMELA MARY STRAUSS MALOUF SECOND RESPONDENT
OSMAL (HOLDINGS) PTY LTD
THIRD RESPONDENT etal JUDGE: THE HON JUSTICE MARCUS EINFELD FEDERAL COURT DATE 2 OCTOBER 1998 OF AUSTRALIA ; 21 JAN 2n3 PLACE: SYDNEY LIBRARY REASONS FOR JUDGMENT
I propose to give brief immediate reasons as I have formed a clear view about the matter. If
necessary, I shall supplement them later but, in view of the hour of the day, I shall keep them
briefer than a written judgment would ordinarily be.
This is an application for what is familiarly called pre-trial discovery. The rule under which the application is made is Order 15A rule 6 which permits discovery before action in limited circumstances. For present purposes, pre-trial discovery may be treated as a compulsory
process causing the production of documents that would normally not be produced until after
an action commenced.
There are three prerequisites provided by the rule for pre-trial discovery. Firstly, there must be reasonable cause to believe that the applicant has, or may have, the right to obtain relief in
the Court from a person whose description has been ascertained. This means that there must be, by an objective judgment, reasonable cause to believe that the applicant for the discovery has or may have the right to bring a successful action in the Court against the person in
control or custody of the documents concerned.
The second criterion is that, after making all reasonable inquiries, the applicant does not have sufficient information to enable a decision to be made whether he or she should or may commence a proceeding in the Court for the purposes concerned. This means what it says, that is, that an applicant who wishes to obtain pre-trial discovery must first make all reasonable inquiries and, having made those inquiries, is still deprived of necessary information to enable the proceedings to be commenced or a decision to be made as to
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