Originating application by prospective applicant for order for discovery (Rule 7.24(1)) (Form 14)

Division 7.3 of the Federal Court Rules 2011 provides for discovery before a proceeding starts. Under rule 7.23, a prospective applicant who reasonably believes it may have a right to relief against an identified prospective respondent, but after reasonable inquiries does not have enough information to decide whether to sue, can ask the Court to order that person to give discovery of documents directly relevant to that question. Rule 7.24(1)(b) requires the application to be made by originating application in Form 14, accompanied by an affidavit stating the facts relied on and identifying, as precisely as possible, the documents or categories of documents sought (r 7.24(2)). Where the problem is that you cannot identify who to sue, rule 7.22 and Form 14A apply instead.

When you need it

• You know who the prospective respondent is but cannot decide whether to start a proceeding without seeing documents they hold.
• You have already made reasonable inquiries and they have not produced enough information.
• You believe the documents are or were in the prospective respondent's control and would help you make the decision (r 7.23(1)(c)).
• Not to find out who to sue: use Form 14A under rule 7.22.

1. 1

   Name the parties

   Use Prospective Applicant and Prospective Respondent in the heading, with the District Registry and Division. List extra prospective applicants in the schedule.

2. 2

   Leave the hearing details to the Registry

   The Registry inserts the time, date and place for the hearing and signs the front page.

3. 3

   State the order sought

   Under 'Order(s) sought', name the prospective respondent and describe the documents you want discovered, consistently with the affidavit.

4. 4

   Prepare the accompanying affidavit

   It must state the facts you rely on (your belief about a possible claim, the inquiries made and why the documents matter) and identify the documents or categories as precisely as possible (r 7.24(2)).

5. 5

   Address and service details

   Give your address for service (r 11.01), email and residential or business address, and name the person on whom you intend to serve the application and affidavit.

6. 6

   Date and sign

   Sign as the Prospective Applicant or its lawyer.

• File the originating application and affidavit with the Court. eLodgment is the Court's electronic filing system. A filing fee applies - check the Court's current fee schedule.
• Serve a copy of the application and affidavit personally on each person against whom the order is sought (r 7.24(3)).
• If an order is made, the person ordered must file a list of documents in accordance with rule 20.17 (r 7.25). You may then apply for the documents to be produced for inspection (r 7.27).

• Narrow categories are more likely to be ordered. A broad 'all documents' request invites opposition.
• The person against whom the order is sought can ask for security for its costs of giving discovery and for an order that you pay its costs (r 7.29).
• Privileged documents do not have to be produced (r 7.26).