Kelbush Pty Ltd v Australian and New Zealand Banking Group Ltd

Kelbush Pty Ltd, the applicant, sought pre-action discovery from the Australian and New Zealand Banking Group Ltd, the respondent, under the Corporations Act 2001 (Cth). The applicant sought disclosure of documents relevant to an anticipated claim for professional negligence against the respondent. The applicant's intended claim arose from the respondent's failure to advise the applicant that a loan agreement, under which the applicant borrowed funds from the respondent, contained a clause allowing the respondent to charge the applicant's accounts receivables as security for the loan. The Federal Court of Australia had to determine whether the applicant had established the necessary preconditions to be granted pre-action discovery. The court had to consider whether the applicant had a bona fide need for the documents, whether the applicant had first requested the documents from the respondent, whether the documents were not already in the applicant's possession, and whether there were other adequate remedies available to the applicant.

The court considered the principles and authorities relating to pre-action discovery. The court found that the applicant had not established that it had a bona fide need for the documents. The applicant had not provided any evidence of its need for the documents, apart from the bare assertion that the documents were necessary for the anticipated claim. The court held that the applicant had to provide more than a bare assertion of need, and had to provide evidence of the nature and content of the documents, and how the documents would assist in establishing the anticipated claim. The court also found that the applicant had not made a proper request for the documents to the respondent, and had not provided any evidence of such a request. The court held that a proper request for documents should be in writing, and should specify the documents requested, the purpose for which they were required, and the time within which they should be provided. The court further found that the applicant had not shown that the documents were not already in its possession, or that it had made reasonable inquiries to obtain the documents. The court held that the applicant had not discharged the onus of showing that the documents were not already in its possession, or that it had made reasonable inquiries to obtain the documents. Finally, the court found that the applicant had other adequate remedies available to it, such as issuing a subpoena or an order under section 25 of the Evidence Act 1995 (Cth). The court held that the applicant had not shown that these remedies were inadequate or inappropriate, and that the applicant had not demonstrated any special or exceptional circumstances that would justify the grant of pre-action discovery.

Accordingly, the court dismissed the applicant's application for pre-action discovery. The court held that the applicant had not satisfied the preconditions for the grant of pre-action discovery, and that the applicant had not shown any special or exceptional circumstances that would warrant an exception to the general rule against pre-action discovery. The applicant's application was dismissed with costs.