Pre-action discovery – Raindale Holdings

From time to time clients ask us about pre action discovery. This can be a useful procedure but the circumstances in which it is available have been very tightly defined by the Courts.

Pre action discovery refers to the court process for obtaining documents before any action has been commenced. The purpose is to use the documents to assist a potential plaintiff party to decide whether or not to initiate action.

The recent case of Raindale Holdings Pty Ltd v Sigma Power Services Pty Ltd [2025] WASC 260 (Raindale) has reiterated the applicable principles of making an application for pre action discovery. An order for pre action discovery is ultimately at the court’s discretion but the applicant must first meet the threshold requirements:

1.         That it may have a cause of action against the potential party,

2.         That it wants to commence proceedings against the potential party,

3.         That it has made ‘reasonable enquiries’ for the purpose of obtaining sufficient information to enable a decision to be made as to whether to commence proceedings,

4.         That it has not been able to obtain sufficient information to enable a decision to be made, and

5.         There are reasonable grounds for believing that the potential party had, has, or is likely to have had or have, possession of documents that may assist the applicant in making the decision to commence proceedings.

To meet the first threshold, the applicant must demonstrate more than ‘mere assertion, conjecture or suspicion’. While the applicant does not need to positively establish a cause of action, they must present sufficient and specific information that would establish the relevant facts to give rise to the cause of action alleged.

In Raindale the pre action discovery application was concerned with an alleged cause of action being breach of fiduciary duties. The application was ultimately unsuccessful on the basis that the information supporting the application did not establish the duties in the first instance. Raindale is an important reminder that while a pre action discovery application is made before proceedings commence, it requires substantive supporting information.

Raindale does not change the existing rules of pre-action discovery but confirms that it remains a useful tool, in the right circumstances, for obtaining information prior to a decision to take action.