Downer Utilities Australia Pty Ltd v Alinta Energy Transmission (Chichester) Pty Ltd [No 2]

Downer Utilities Australia Pty Ltd brought a claim against Alinta Energy Transmission (Chichester) Pty Ltd for professional negligence. The dispute centred on the availability and extent of insurance coverage for the alleged professional negligence. The case was heard in the Supreme Court of New South Wales. The primary legal issue was whether Downer Utilities had sufficient information to determine whether to commence proceedings against Alinta Energy Transmission, specifically whether the insurance policies of the relevant professional, Mr Fieldhouse, covered the claim.

Newnes JA examined the principle that a party seeking preliminary discovery must demonstrate that they lack sufficient information to decide whether to commence proceedings. He reviewed relevant Federal Court cases and found that discovery may be appropriate if the applicant lacks necessary information. However, the entitlement to such discovery depends on the specific circumstances of the case. The judge considered the information provided by Alinta Energy Transmission and concluded that it was insufficient to determine whether to sue them. The information did not address the crucial issue of whether the insurance policies provided coverage for the claim against Mr Fieldhouse.

The judge found that Downer Utilities needed the insurance contracts and related documents to ascertain whether Alinta Energy Transmission's insurance covered the claim. Without this information, it would be futile to proceed against Alinta Energy Transmission, as the policy might not respond to the claim. The judge emphasised that the rule against proceeding without sufficient information is intended to prevent such futile actions.

The court held that Downer Utilities did not have sufficient information to decide whether to commence proceedings against Alinta Energy Transmission. The orders of the court were to dismiss the appeal by Downer Utilities.