Sometimes, when considering whether to proceed with a claim against another party, there may be a few obstacles in the way. You may not know the exact identity of the other party or where that party is located. Or the other party may be in possession of documents that may help you decide how strong your case may be. How does one overcome these obstacles?
Fortunately, in New South Wales the Uniform Civil Procedure Rules 2005 can be of great assistance to clear the way by means of what is called preliminary discovery i.e. allowing a party in a court case to be provided with documents relevant to that case. Rules 5.2 and 5.3 apply and, if used properly, may even cause the dispute to be resolved at any early stage.
Under rule 5.2 if a person, after making reasonable enquiries, is unable to ascertain the identity or whereabouts of someone for the purpose of commencing legal proceedings and another person has relevant information that may assist then a court may either order the other person to attend court to be examined about it or to give discovery of all relevant documents in their possession.
Under rule 5.3 if a person may be entitled to claim relief against another person but, after making reasonable enquiries, is unable to obtain sufficient information to decide whether or not to commence legal proceedings and that other person possesses documents than can assist then a court may order the other person to give discovery of those documents.
To take advantage of the above rules, a formal letter should be sent to the other party requiring the information or documents and it should point out that an application will be made to a court upon failure to comply. Most people would definitely think twice before allowing themselves to become immediately embroiled in a court hearing so easily avoided, particularly with the considerable legal costs involved. The letter will also apply pressure to the other party to resolve the underlying dispute.
July 2024