Camilleri v Boral Resources

Preliminary Discovery

4. Rule 651 of the Court Procedures Rules provides: 651 Discovery to identify right to claim relief (1) This rule applies if— (a) a person (the applicant) has, or may have, a cause of action against someone (the potential defendant); and (b) either— (i) the applicant, after making reasonable inquiries, cannot obtain sufficient information to decide whether to start a proceeding in the court against the potential defendant for the cause of action; or (ii) the following provisions apply: (A) the applicant is a party to a proceeding in the court; (B) the potential defendant is not a party to the proceeding; (C) the applicant, after making reasonable inquiries, cannot obtain sufficient information to decide whether to make a claim for relief in the proceeding against the potential defendant for the cause of action; (D) the claim for relief could properly have been made in the proceeding against the potential defendant if the potential defendant were a party; and (c) the applicant has reasonable grounds for believing that the potential defendant has or has had possession of a document or thing that can assist in deciding whether to start the proceeding, or make the claim for relief, against the potential defendant; and (d) inspection of the document or thing by the applicant would help in making the decision. (2) If subrule (1) (b) (i) applies, the applicant may apply to the court by originating application for an order under this rule (and, if relevant, an order under rule 715 (Inspection, detention, custody and preservation of property—orders etc)) against the potential defendant. (3) If subrule (1) (b) (ii) applies, the applicant may apply to the court for an order under this rule (and, if relevant, an order under rule 715) against the potential defendant. Note Pt 6.2 (Applications in proceedings) applies to the application. (4) The application must be supported by an affidavit stating the facts on which the applicant relies, and stating the kinds of documents or things in relation to which the application is made. Note 1 For an application mentioned in r (2), div 2.2.3 (Originating applications) contains provisions about the content of originating applications, the filing and service of originating applications, etc. Note 2 For an application mentioned in r (3), r 6008 (Application in proceeding—filing and service) deals with service of the application and supporting affidavit. (5) The court may order the potential defendant to produce the document or thing to the applicant. (6) An order under this rule in relation to any document or thing held by a corporation may be addressed to any appropriate officer or former officer of the corporation.

5. Relevantly, for the determination of this application, the Court must be satisfied: (a) That the applicant has or may have a cause of action against the respondent. (b) That reasonable inquiry has been made and as a consequence of that inquiry, the applicant does not have sufficient information to decide whether to start a proceeding against the respondent. (c) That there are reasonable grounds for believing that the respondent has or previously had possession of a document or thing that can assist in deciding whether to start a proceeding. (d) That inspection of the document or thing would help in deciding whether to start a proceeding.

Relevant principles

6. The principles were set out in Tennent Group Pty Ltd v Veritec Pty Ltd [2025] ACTSC 313 at [12], and they are restated below. 12․ In establishing these matters to the satisfaction of the court the onus rests on the applicant to establish that, having made reasonable inquiries, they are unable to secure sufficient information to decide whether or not proceedings should be commenced: Morton v Nylex Ltd [2007] NSWSC 562 at [33]; Hall v Commonwealth [2018] ACTSC 79 at [22]. Preliminary discovery cannot be used to bolster or strengthen a case that the applicant has already decided to bring, or where they are already in a position to make that decision: iSAM Securities (UK) Ltd v Press [2024] NSWSC 1036 at [66]. 13․ The nature of the relief that is sought against a third party not yet involved in litigation is extraordinary. It is therefore to be approached by the court with caution, and with due consideration that the effect of an order under the rule is to compel one party not involved in litigation to release documents to another party, itself not involved in substantive litigation: Elmaraazey v The Law Society of the Australian Capital Territory [2006] ACTSC 124; 205 FLR 445 at [18]-[19]; Matuska v Ali (1987) 71 ACTR 23 at 7. Has a potential cause of action been identified?

7. The obligation resting with the applicant is not to demonstrate a prima facie case on a particular cause of action, but to identify the nature of that cause, and some objective foundation for it such that it is more than a mere allegation: see Pesec v Consolidated Builders Limited [2019] ACTSC 142 at [18] and the authorities there cited.

8. In a prospective personal injury action between an employee and their employer, with due regard to the non-delegable nature of the duty owed by the employer to provide a safe system of work, and to ensure that one is provided, the bar to be reached in establishing a potential cause of action is relatively low. I have little hesitation in reaching the view that the relevant threshold is reached in this case.

Has reasonable inquiry been made?

9. There are two elements to the obligation imposed upon the applicant pursuant to r 651(1)(b)(i) of the CPR. The applicant must first demonstrate that they cannot obtain sufficient information to decide whether or not to commence a proceeding, and secondly that state of affairs has been reached after making reasonable inquiries. In Mr Tierney’s affidavit he attests to the relevance of safe working policies and procedures to the advice that he will give his client concerning the prospects of a cause of action against the respondent. He also attests, via exhibited correspondence, to his efforts to obtain any relevant policies and procedures from the workers compensation insurer and from the solicitor now representing the respondent. What remains unclear is why, in reliance on the material already available to him the applicant, through his advisors, is unable to form a view as to whether there is a proper basis upon which to commence common law proceedings. It is entirely unclear what evidence is presently available to the applicant. It may well be the case that the absence or existence of policies and procedures of the kind sought to be discovered by the applicant will be relevant to the determination of a claim in negligence or for statutory breach brought by the applicant against his employer, but that is not the test. The applicant must establish that after reasonable inquiry, he cannot obtain sufficient information to decide whether to start a proceeding. Not whether that decision may be enhanced by some additional information not presently available to him.

10. The applicant has also failed to establish what, if any, other sources of inquiry have been pursued with a view to procuring sufficient information to enable a decision about whether or not to commence proceedings. Such inquiry may encompass the interviewing of witnesses and of other persons with knowledge relevant to the injury circumstances.

11. For these reasons, the application for preliminary discovery must fail.

Orders

12. I make the following orders: (1) The application is dismissed. (2) The applicant is to pay the respondents costs.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller.

Associate: Date: 5 September 2025