Commercial LawNewsDon’t know who to sue? Queensland law has changed to assist prospective plaintiffs

The first question that any claimant or prospective plaintiff must face when considering whether to make a claim is, who do I sue?

Although this is a seemingly straightforward question, it is often one which can be difficult to answer. Other difficult preliminary questions which prospective plaintiffs need to answer prior to bringing their claim include:

• the whereabouts of the prospective defendant? and
• are there any documents I require in order to satisfy the requirements of my cause of action?

However, as of 10 December 2021, new rules have been amended and included into the Uniform Civil Procedures Rules 1999 (UCPR) which allow prospective plaintiffs to seek preliminary disclosure.

The newly included Rules 208A to 208G UCPR provide potential claimants the ability to bring an application in the Supreme Court, prior to filing their claim, where relief of the following may occur:

1. that another person, who may have information or possess documents which may assist in ascertaining the identity or whereabouts of a prospective defendant, be ordered to provide that information or produce those documents to the prospective plaintiff (Identity Disclosure); or
2. that a prospective defendant, who likely has possession of a document which a prospective plaintiff would have to refer to in order to commence proceedings against that prospective defendant, be ordered to provide that document/s to the prospective plaintiff (Documentary Disclosure).

The rules provide that a prospective plaintiff must file a supporting affidavit with their application which sets out the facts on which they rely. In this document, applicants should set out the right to relief which they believe they have against the prospective defendant. When applying for Identity Disclosure, the applicant must include in their affidavit the reasonable inquiries they made to ascertain the prospective defendant’s identity or whereabouts. When applying for Documentary Disclosure, the applicant must set out in their affidavit why the document/s are necessary in order to start a proceeding against the prospective defendant and reasons why they believe that the document/s are in their possession.

The new rules are similar to those in other states and the Commonwealth. As these new rules have not yet been the subject of judicial scrutiny, practitioners will likely look to how other jurisdictions have handled such preliminary disclosure applications.

Prior to these new rules, in Queensland you could:

1. Apply to the courts seeking that they exercise their equitable jurisdiction to hear an application for preliminary discovery; or
2. The second was to apply to the courts seeking leave to deliver interrogatories (essentially a list of questions) to a relevant person.

These new rules provide a straightforward pathway to prospective plaintiffs to obtain essential information for their claim prior to filing with the courts. The new rules should assist parties to avoid incurring unnecessary legal fees by having to utilise the previous methods available to them, as well as minimizing the possibility of having to amend pleadings to include new information when it becomes available to them during regular disclosure process.

Should you believe that you have a claim and wish to discuss what further information and documents you require, as well as the avenues available to you in order to attain them, please get in touch with the commercial litigation team at SLF Lawyers Brisbane.