defendant. Application for discovery under Rule 32.05 dismissed; costs to be taxed and paid by the applicant, with an exclusion for respondents' costs of the previous day (see [33], [37], [41]).
Key principles
Rule 32.05 does not permit pre-action discovery against an identified prospective defendant where the applicant already believes that she has a cause of action; the rule is...
Where the applicant already has sufficient information to determine that she 'has, or may have' a cause of action, an application for discovery under Rule 32.05 is misconceived...
Issues before the court
Whether the plaintiff (applicant) was entitled to pre-action discovery from the prospective defendants (executors) under Rule 32.05 of the Supreme...
Cited legislation
No linked legislation citations have been extracted yet.
Plain English Summary
The applicant sought pre-action discovery from the deceased's executors to obtain financial records to decide whether to sue the estate for financial provision. The court held Rule 32.05 only permits discovery where the applicant lacks sufficient information to decide whether to commence proceedings; because probate materials and the applicant's own affidavits already provided enough information to show she may have a cause of action, the application was dismissed as misconceived. Costs were ordered against the applicant (see [5], [21], [27], [33]).
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Deep Dive
1,819 words · generated 24/06/2026
What happened
Dyer v Hunter was an interlocutory application heard in the Supreme Court of Victoria (Practice Court) on 7 December 1999 before Beach J. The applicant, Dorothy Dyer, sought pre-action discovery under Rule 32.05 of the Supreme Court Rules from the respondents, Ashley Ferguson Hunter and Ron William Salmon, executors and trustees of the will and estate of Shane Anthony Hunter (deceased). The discovery sought comprised voluminous financial documentation relating to the deceased's business activities and six trusts from 30 June 1992 until the date of death ([2]).
The factual backdrop was that the deceased died on 16 September 1998, leaving a will dated 24 December 1996 which deliberately excluded one daughter (the applicant) on the ground that she had not had contact with him for the prior two-and-a-half years and had indicated she wanted nothing to do with him or his estate ([9]). Probate was granted to the respondents on 13 September 1999 and an inventory of assets and liabilities was filed at the time probate was sought ([9], [30]).
The applicant swore that she and the deceased had enjoyed a close, loving, permanent relationship for more than five-and-a-half years prior to his death and that they had entered into an agreement in January 1993 to marry ([12]). She intended to bring a claim under Part IV of the Administration and Probate Act seeking adequate provision for her maintenance and support from the estate ([15]). She stated, however, that she could not determine whether to commence that proceeding without access to the financial information sought ([18]).
Beach J dismissed the application, holding that Rule 32.05 is designed to enable a person to determine whether a cause of action exists, not to verify or quantify a cause of action the applicant already believes she has; on the material before the court (the applicant's own affidavits, the inventory and the defendants' affidavits), the applicant already had sufficient information to determine she 'has, or may have, a good cause of action' and therefore the discovery application was misconceived ([21], [27], [30], [33]). Costs were ordered against the applicant, with a limited exclusion for the respondents' costs of the previous day ([33], [37], [41]).
Why the court decided this way
The decision turned entirely upon the correct construction and application of Rule 32.05. Beach J quoted the relevant limb of Rule 32.05 in full, which conditions pre-action discovery on two elements: (a) a reasonable cause to believe the applicant has or may have the right to obtain relief from a person whose identity is known, and (b) after making all reasonable enquiries, the applicant does not have sufficient information to decide whether to commence proceedings ([5]).
The pivotal question in this case was whether the applicant lacked 'sufficient information' to decide whether to sue. Beach J emphasised the narrowly purposive function of the rule: it is to determine the existence of a cause of action against an identified prospective defendant. He stated that if the applicant already believes there is a cause of action, Rule 32.05 is not available to verify that belief or to test the strength of the case ([21]). The judge relied on previously cited authorities to support that interpretation (see references to Gibson, Mercantile Mutual and Petrolite in [21]).
Applying that test to the facts, Beach J found that the applicant already knew she was excluded from the will and, given her sworn statements about a long-term relationship and an intended marriage, she would know that she 'may have a cause of action' under Part IV. Moreover, the applicant had before her an inventory of assets and liabilities filed with the court at probate and affidavits from the defendants; on that material she had 'sufficient information' to decide whether to commence proceedings. The discovery sought was directed to the quantum of any claim, not to whether a claim existed at all ([24], [27], [30]). That established the application was misconceived and had to be dismissed ([33]).
The costs orders reflect the court's view that the application lacked merit, subject to an administrative exclusion for costs of an earlier day ([33], [37], [41]).
Before and after state of the law
Before this decision, Rule 32.05 had been construed by various judges as a mechanism for pre-action discovery in limited circumstances, namely where an applicant genuinely lacked necessary information to decide whether to commence litigation against an identified prospective defendant. Beach J's judgment is consistent with that established approach.
Beach J expressly relied on prior unreported decisions as authority that Rule 32.05 cannot be used to obtain material to verify a cause of action that the applicant already believes she has (citing Gibson v ANZ, Mercantile Mutual v Household Financial Services, and Petrolite v Hong Kong Bank, all referenced in [21]). The decision in Dyer reaffirmed that principle and applied it concretely in the probate/family-provision setting. The effect is to confirm that, at least in Victoria's Practice Court, Rule 32.05 is not an instrument for fishing for quantum-related information once the applicant already has reason to believe she has a cause of action.
After Dyer, practitioners must be careful when seeking pre-action discovery in family provision or similar contexts: if the applicant's own material and public probate filings make clear that she may have a claim, the court will likely find there is no need for Rule 32.05 discovery. Dyer thus reinforces the pre-existing limiting principle as an applied rule in probate disputes.
Note: Dyer itself does not attempt to broaden Rule 32.05 nor identify new exceptions; rather it applies the settled test and rejects an application that seeks discovery only to quantify a claim.
Key passages with plain-English translation
Quotation (Rule text) [5]:
Court text: The Rule provides that where there is reasonable cause to believe an applicant 'has or may have' a right to relief and, after making enquiries, lacks sufficient information to decide whether to start proceedings, the court may order discovery.
Plain English: The rule allows pre-action discovery only when you think you might have a legal claim but do not have enough facts to decide whether to sue.
Explanation of purpose [21]:
Court text: 'The purpose of Rule 32.05 is to enable a person to determine whether or not he or she has a cause of action... If the applicant already believes that there is a cause of action, discovery is not available to enable the applicant to verify that belief or otherwise to ascertain the strength of the case for the right to relief.'
Plain English: The rule's job is to help you find out if you have a case. It is not there to let you prove how strong your case is once you already believe you have one.
Application to facts [27]:
Court text: 'In my view the applicant already does have sufficient information available to her to determine whether she has a cause of action against the estate of the deceased.'
Plain English: Given the documents and sworn statements already on file, the applicant already had enough information to decide whether to sue; she did not need the discovery she asked for.
Disposition [33]:
Court text: 'Accordingly the application is dismissed with costs to be taxed and paid by the applicant.'
Plain English: The application for discovery was refused, and the applicant must pay the respondents' legal costs.
What fact patterns trigger this precedent
Dyer is directly engaged where:
An identified prospective defendant exists (for instance, executors or trustees) and an applicant seeks pre-action discovery under Rule 32.05.
The applicant has already available material that demonstrates both (a) non-entitlement under a will (or other baseline fact) and (b) circumstances from which it is reasonable to infer the applicant 'may have' a cause of action (for instance sworn evidence of a de facto relationship or an intention to marry).
Probate materials, inventories, affidavits or other public filings already lodged with the court provide factual detail the applicant could use to decide whether to commence proceedings.
The discovery sought is directed primarily at quantifying the claim (quantum/size) rather than establishing the basic entitlement to relief.
Conversely, Dyer suggests a Rule 32.05 application is more likely to succeed where the applicant genuinely lacks information necessary to identify or establish a cause of action against an identified person, and where reasonable enquiries have been made but have not yielded the required information.
How later courts have treated it
The judgment itself cites earlier unreported authorities for the proposition that Rule 32.05 is not available to verify a cause of action already believed to exist ([21]). Dyer applies that principle to the probate/family-provision context. The judgment does not contain any material about later judicial treatment of Dyer. Therefore, one cannot from this decision alone identify subsequent appellate treatment, affirmations, or distinctions. Practitioners should check subsequent reported authorities and any Court of Appeal or High Court pronouncements for developments or refinements to the test applied in Dyer.
Still-open questions
Dyer is a fact-specific application of the Rule 32.05 test. It leaves open a number of practical and doctrinal questions that commonly arise in pre-action discovery practice:
Where precisely is the line drawn between facts sufficient to show an applicant 'may have' a cause of action and facts that merely suggest a speculative claim? Dyer treats the applicant's sworn relationship evidence plus probate filings as sufficient, but more marginal fact patterns will pose harder issues.
How much and what kind of 'reasonable enquiries' must an applicant make before she can be said to have sufficient information? Dyer refers to 'after making all reasonable enquiries' but does not catalogue what is required in the probate context.
To what extent do public filings (such as the inventory filed at probate) conclusively supply the 'sufficient information' threshold, or might there be cases where, despite such filings, discovery under Rule 32.05 remains necessary to establish the existence of a cause of action?
How should courts approach applications where the applicant's own affidavits allege facts that, if false, would undermine an inference that a cause of action exists? Dyer accepts the applicant's sworn statements for the purpose of sufficiency, but it remains open how conflicting material should be treated at interlocutory stage.
Finally, Dyer does not address whether Rule 32.05 could ever be invoked to obtain documents relevant to both existence and quantum where those issues are intertwined; the decision suggests a distinction but leaves grey areas where documents serve both purposes.
Practitioners should therefore treat Dyer as a clear application of the principle that Rule 32.05 is not for quantification of a claim already credibly asserted, while recognising the need to apply the test carefully to the facts of each case and to stay alert for subsequent authority that may refine the scope of 'sufficient information' and the necessary extent of 'reasonable enquiries'.
Catchwords
Practice and procedure - Discovery from prospective defendant - R.S.C. 32.05 - Applicant already believes that she may have a cause of action - Application dismissed.
Judgment (14 paragraphs)
[1]
I have before me a summons filed in the court by the applicant, Dorothy Dyer, whereby the applicant seeks from the respondents, Ashley Ferguson Hunter and Ron William Salmon, who are sued as executors and trustees of the will and estate of Shane Anthony Hunter, deceased, discovery of what on the face of it can only be described as voluminous financial documentation relating to the business activities of the deceased and some six trusts controlled by him from 30 June 1992 to the date of the deceased's death.
[2]
The application is made pursuant to the provisions of Rule 32.05 of the Supreme Court Rules, the relevant provisions of which for present purposes read:
[3]
"Where - (a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the court from the person whose description he has ascertained; (b) after making all reasonable enquiries the applicant has not sufficient information to enable him to decide whether to commence a proceeding in the court to obtain that relief - the court may order that that person [that is, the person referred to in sub-clause (c) of the rule] shall make discovery to the applicant of any document of the kind described in paragraph (c)."
[4]
The background to the application may be summarised as follows. The deceased died on 16 September 1998 leaving a will dated 24 December 1996. Probate of the will was granted to the respondents on 13 September 1999. By his will the deceased left the whole of his estate to be divided equally between four of his five children. In his will the deceased has stated that he deliberately made no provision for a fifth child, a daughter, "she not having had any contact with me for at least the last two-and-a-half years and she having indicated to me that she wants nothing to do with me or to be involved with me or in my estate at any time whatsoever".
[5]
The applicant has sworn that for a continuous period of more than five-and-a-half years prior to the death of the deceased, she and the deceased enjoyed a close and loving permanent relationship. Indeed, she has sworn that pursuant to an agreement between her and the deceased made in January 1993 the two of them had intended to marry.
[6]
What the applicant is contemplating is taking a proceeding against the estate of the deceased pursuant to Part IV of the Administration and Probate Act seeking that adequate provision be made for her maintenance and support from the estate of the deceased.
[7]
The applicant contends that she is unable to institute such a proceeding until such time as she has available to her the financial information sought in her summons.
[8]
The purpose of Rule 32.05 is to enable a person to determine whether or not he or she has a cause of action against an identified prospective defendant. If the applicant already believes that there is a cause of action, discovery is not available to enable the applicant to verify that belief or otherwise to ascertain the strength of the case for the right to relief. In that regard see the decision of Gobbo, J. in Gibson v. Australia and New Zealand Banking Group Ltd, unreported, 30 August 1991. Or, as was stated by the Court of Appeal in Mercantile Mutual Insurance Australia Ltd v. Household Financial Services Ltd, unreported, 22 May 1997, the rule cannot be used to obtain material to verify a cause of action which the applicant already knows that it has. The applicant must be seeking to determine whether a right to obtain relief exists, not simply the strength of a right to obtain relief which is believed to exist; that is, to determine the likelihood of success in a proceeding to obtain the relief: see Petrolite Pty Ltd v. Hong Kong Bank Ltd, the unreported decision of Cummins, J., 10 February 1992.
[9]
In the present case the applicant already knows that she is not a beneficiary of the estate of the deceased in circumstances where, if her testimony in relation to the matter is correct - and I refer in that regard to the content of her affidavit sworn 16 November 1999 - she would already know that she may have a cause of action against the estate of the deceased.
[10]
In my view the applicant already does have sufficient information available to her to determine whether she has a cause of action against the estate of the deceased. What I consider she is now seeking by means of this application is the detail of the financial activities of the deceased over the six or so years prior to his death, with a view to determining how much her claim might be worth. In my opinion that has nothing to do with the question as to whether or not she may have a cause of action against the estate of the deceased. That information could relate only to the potential size of her claim.
[11]
In my opinion, having regard to the material that is already available to the applicant, including the inventory of the assets and liabilities of the deceased filed in the court at the time the application for probate of his estate was lodged, and the material now appearing in the affidavits filed by the two defendants to the proceeding, the applicant already would know that she has, or may have, a good cause of action, and I consider her present application to be misconceived.
[12]
Accordingly the application is dismissed with costs to be taxed and paid by the applicant.
[13]
HIS HONOUR: I shall certainly exclude from that order the costs of the respondents of yesterday.
[14]
HIS HONOUR: I make no further order in respect of the costs.
Parties
Applicant/Plaintiff:
Dyer
Respondent/Defendant:
Hunter [1999] VSC 531
AI Analysis
Outcomedefendant
Disposition:
Application for discovery under Rule 32.05 dismissed; costs to be taxed and paid by the applicant, with an exclusion for respondents' costs of the previous day (see [33], [37], [41]).