1. Introduction
Pre-action discovery is a procedural mechanism available in Western Australian civil litigation that enables prospective litigants to obtain information before commencing formal proceedings. The Supreme Court of Western Australia has developed a body of jurisprudence addressing various aspects of pre-action discovery, particularly under Order 26A of the Rules of the Supreme Court 1971 (WA) (RSC). This article examines the law relating to pre-action discovery through an analysis of four key decisions: Reynolds v Higgins [2024] WASC 260 (Reynolds), John Lovegrove & Co. Pty. Ltd. & A.J Lovegrove & M.H Lovegrove Trading as Lovegrove Electrical v Lumley [2024] WASC 59 (Lovegrove), Jako Industries Pty Ltd v City of Wanneroo [No 4] [2025] WASC 63 (Jako Industries), and Global Smart Cities Pty Ltd v Perkins (WA) Pty Ltd [2025] WASC 129 (Global Smart Cities).
These decisions collectively address applications for pre-action discovery in various contexts: to identify a potential party (Reynolds), to obtain documents from a former employee (Lovegrove), to extend time for compliance with pre-action discovery orders (Global Smart Cities), and to determine whether a potential cause of action exists (Jako Industries).
2. Legal Framework for Pre-Action Discovery
2.1 Pre-Action Discovery to Identify a Potential Party (O 26A r 3)
Order 26A r 3 of the RSC empowers the Court to order a non-party to give discovery to identify a potential party to an action. In Reynolds v Higgins [2024] WASC 260, Quinlan CJ summarized the principles governing such applications, stating at [31]:
"The principles relating to O 26A r 3 of the Rules of the Supreme Court 1971 (WA) are well settled. Order 26A r 3 empowers the Court to order a non-party to give discovery to identify a potential party to an action where the following conditions are satisfied: (a) the plaintiff wants to commence proceedings against the potential party; (b) the plaintiff has made reasonable enquiries; (c) the plaintiff has not been able to ascertain a description of the potential party sufficient for the purposes of taking proceedings against that potential party; and (d) there are reasonable grounds for believing that the non-party had, has or is likely to have had or to have, possession of information, documents or any object that may assist in ascertaining the description of the potential party."
This framework was further affirmed by reference to The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 2] [2008] WASC 147 at [19] and NW v Bechtel (Western Australia) Pty Ltd [2014] WASC 375 at [13].
2.2 Pre-Action Discovery to Determine Whether to Commence Proceedings (O 26A r 4)
Order 26A r 4 allows for pre-action discovery to enable a prospective plaintiff to determine whether to commence proceedings. In Jako Industries [2025] WASC 129, Howard J referenced the Court of Appeal's summary in BWS v ARV [No 2] [2021] WASCA 62 at [28]-[37], explaining at [22]:
"The discretionary power under O 26A r 4(4) is enlivened if the court is satisfied that: (a) the applicant 'may have a cause of action against' the potential party; (b) the applicant wants 'to commence proceedings against' the potential party; (c) the applicant has made 'reasonable enquiries' for the purpose of obtaining sufficient information to enable him or her to decide whether to commence proceedings; (d) the applicant has not been able to obtain sufficient information to enable him or her to make a decision; and (e) 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."
3. The "May Have a Cause of Action" Threshold
A critical threshold for pre-action discovery under O 26A r 4 is establishing that the applicant "may have a cause of action" against the potential party. The courts have clarified that this is a lower threshold than establishing a prima facie case, but requires more than mere assertion.
In Jako Industries [2025] WASC 129, Howard J, referring to BWS v ARV [2021] WASCA 62 at [33], emphasized at [41]-[42]:
"In my view, there is nothing on the material which could be described as '... some tangible backing or objective foundation that takes the existence of the cause of action beyond a mere allegation, suspicion or assertion.'
While Jako Industries did not have to positively establish the existence of a cause of action, it has to demonstrate more than mere assertion, conjecture or suspicion."
This principle was further explained in Reynolds [2024] WASC 260, where Quinlan CJ noted at [40]:
"As reflected in the principles set out above, an order for discovery will not be made if the prospective action is merely speculative. This does not mean that the plaintiff seeking discovery as to the identity of a prospective party must demonstrate that it has a prima facie case. To use the words of O 26A r 3, the plaintiff must 'appear' to have a cause of action; it is not necessary, under the rule, to find that the plaintiff in fact has a good cause of action."
4. Discretionary Factors Governing Pre-Action Discovery
Even where the threshold requirements for pre-action discovery are met, the Court retains a discretion whether to order discovery. The Court of Appeal in BWS v ARV [2021] WASCA 62 identified several factors relevant to this discretion, which were summarized in Jako Industries [2025] WASC 129 at [26]:
"1. the likelihood that a cause of action of the kind suggested will be found to exist; 2. the nature and significance of the potential cause of action; 3. the likely effect of an order of the kind contended for on the potential party; 4. whether the applicant has any other adequate means of obtaining the information; 5. the nature and confidentiality of the documents proposed to be obtained; 6. the possible significance of the information in a documents to the decision whether to commence the contemplated proceedings; 7. whether the applicant is able to compensate the potential party for its costs of complying with the order; 8. whether there is any evidence of bad faith on the part of the applicant; and 9. the extent to which the cost and effort involved in undertaking the proposed discovery and inspection is proportionate to the likely value of the claim if successful."
In Reynolds [2024] WASC 260, Quinlan CJ applied these factors and concluded at [82]-[83]:
"In all of the circumstances, I am satisfied that the interests of justice favour an order for pre-action discovery of the trust deed of the Trust or such other documents that identify the trustee.
Senator Reynolds seeks to bring a bona fide claim to set aside the Trust pursuant to s 89 of the Property Law Act 1969 (WA). That claim is (a) not merely speculative, and (b), on the evidence before me, may be the only prospect of Senator Reynolds ever satisfying a potential judgment debt in the defamation proceedings. Those two matters in my view weigh strongly in favour of Senator Reynolds at least having discovery so as to enable such a claim to be formulated, and having received further advice including as to the prospects of success, commencing that claim."
5. Costs Principles for Pre-Action Discovery
The costs principles governing pre-action discovery applications have been addressed in several decisions. In Lovegrove [2024] WASC 59, Master Russell summarized the general approach at [15]-[17]:
"It was also uncontroversial that in an application for pre-action discovery, the usual rule is that the party seeking discovery should pay the costs of the application and the discovering party's reasonable costs and expenses of complying with any order made."
This starting position reflects the characterization of pre-action discovery as an "indulgence" sought by the applicant. However, the Court of Appeal in Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14 (S) established an important qualification to this general rule by creating a mechanism for potential recoupment of these costs when substantive proceedings are later commenced. The details of this mechanism and its practical application are discussed in Section 6.2 below.
The principles from Kelbush were further applied in Lovegrove [2024] WASC 59, where Master Russell noted at [24]-[25]:
"As observed by Martin CJ in the Kelbush Costs Decision, the proper course in proceedings of this nature is to order, in the absence of any reason to the contrary, that the applicant for the indulgence of pre-trial discovery pay both the respondent's costs of the application and the respondent's reasonable costs of complying with any order for discovery made.
I am not satisfied there is any reason in this case to justify any change from the usual course or why the applicant for pre-action discovery, Lovegrove, should not pay the costs of the application and Mr Lumley's reasonable costs and expenses of giving the discovery."
6. Confidentiality and Procedural Considerations
6.1 Confidentiality of Discovered Documents
The Court may impose confidentiality regimes on documents obtained through pre-action discovery. In Reynolds [2024] WASC 260, Quinlan CJ addressed confidentiality at [86]-[89]:
"Ms Higgins submitted that, in the event that I made an order for pre-action discovery, reliance upon the implied undertaking (i.e., the so-called Harman undertaking) in relation to the use of discovered documents would not be sufficient and that I should make particular orders to protect the confidentiality of the document (or documents) discovered.
I am satisfied that I should do so. The evidence before me confirms, and I would have to be living under a rock not to know, that litigation involving Ms Higgins is litigated as much in the public arena as it is in the courts: court documents are provided to media outlets prior to their being served or even filed, speeches and 'door-stop' interviews are regularly conducted on the doors of the courts and self-appointed experts dissect, analyse and predict the outcome of court proceedings before they have even begun...
The Court, however, can and should control the dissemination of private and sensitive documents that have neither been tendered nor adduced in evidence. This is particularly so in relation to documents produced under compulsion such as will occur in this case...
While I will hear the parties as to the precise terms of the orders, my preliminary view is that the document or documents discovered should be provided to a single nominated practitioner from the solicitors acting for Senator Reynolds, following the provision by the practitioner of a signed undertaking to the Court that he or she will retain possession and control of the document, not copy the document and not communicate the contents of the document, save for the purpose of taking instructions from Senator Reynolds and commencing the proposed proceedings (and for no other purpose)."
6.2 The Kelbush Costs Mechanism and Time Limitations
The Court of Appeal in Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14 (S) established a specific mechanism for addressing costs in pre-action discovery cases. Martin CJ (with whom Buss JA and Mitchell J agreed) set out the following principles at [2]-[4]:
"[2] ... the proper course in proceedings of this nature is to order, in the absence of any reason to the contrary, that the applicant for the indulgence of pre-trial discovery pay both the respondent's costs of the application and the respondent's reasonable costs of complying with any order for discovery made. Further, it is my view that the obligation to pay costs should not be deferred indefinitely merely because proceedings are subsequently commenced by the applicant against the respondent.
[3] However, as a matter of principle, there should be a mechanism by which such an applicant can recoup not only the costs that it is ordered to pay to such a respondent, but also its own costs of the pre-trial discovery application if it commences proceedings against the respondent and it appears to the court responsible for those proceedings that such costs should be ordered to be paid to the applicant...
[4] The mechanism by which those costs can be recouped would be by way of an order empowering the current appellant to make an application in the course of any subsequent proceedings for orders with respect to not only the costs that it is ordered to pay the respondent today, but also with respect to its own costs of the application before the master."
In implementing these principles, the Court of Appeal made the following costs order in Kelbush: "Appellant to pay respondent's costs of application for and compliance with orders for pre-action discovery" (as recorded in the "Result" section of the judgment). Importantly, as Martin CJ explained at [3], this was "subject to an order enabling recoupment of those costs" through the mechanism described in paragraph [4].
This costs mechanism typically includes a time limitation to ensure that costs issues are not left unresolved indefinitely. In Global Smart Cities v City of Wanneroo [No 4] [2025] WASC 63, Howard J considered an application to extend such a time limitation. The case demonstrated that this type of order concerning time limitations has become a common feature in pre-action discovery applications, as Howard J noted at [20]:
"The Master made Order 6, which is now commonly made in these actions. The idea being that these matters should be addressed promptly, and the question of costs not left to hang indefinitely, as the Chief Justice might have said."
The specific orders at issue in that case included:
Orders 5 and 6 made by the Master, with Order 6 placing a time limit on when the cost issues could be addressed through the Kelbush mechanism
Order 2 made by Howard J on 13 October 2023 extending that time limit in light of a confidentiality regime that had been imposed
An application to further extend the time period
As Howard J noted at [19]-[21]:
"I consider, in making his Orders 5 and 6, the Master recognised and adapted that mechanism but also sought to give effect to the statements of principle in [2] of the Chief Justice's reasons that the obligation should not be deferred indefinitely.
The Master made Order 6, which is now commonly made in these actions. The idea being that these matters should be addressed promptly, and the question of costs not left to hang indefinitely, as the Chief Justice might have said.
Order 2 I made on 13 October 2023 sought to extend that to a definable or knowable date to give effect to Order 6, as made by the Master, in light of the confidentiality regime which I considered should be imposed."
Howard J ultimately declined to further extend the time limitation, emphasizing at [27] that:
"It seems to me that the plaintiff has not taken advantage of the time that was extended by my Order, and it seems to me in the interests of justice that that time period ought not to be further extended."
This case demonstrates the courts' concern with balancing:
The right of pre-action discovery applicants to potentially recover their costs if they subsequently commence proceedings; and
The need to ensure that cost issues are resolved within a reasonable timeframe rather than being deferred indefinitely.
7. Conclusion
Pre-action discovery in Western Australia is governed by a body of jurisprudence that balances the interests of prospective plaintiffs in obtaining information necessary to make informed litigation decisions against the burden placed on potential defendants.
The courts have developed nuanced approaches to the threshold requirements, discretionary factors, costs principles, and procedural considerations involved in pre-action discovery applications.
While the courts generally recognize pre-action discovery as an "indulgence", they have also acknowledged its important role in facilitating access to justice by enabling parties to make informed decisions about whether to commence litigation.
The consistent theme throughout the jurisprudence is that pre-action discovery should be ordered where it serves the interests of justice and the proper administration of potential litigation, but with appropriate safeguards to prevent abuse and unnecessary burden on responding parties.