Kelly Partners (Western Sydney) Pty Ltd v Ms Shakespeare (a Pseudonym)

In the case of Kelly Partners (Western Sydney) Pty Ltd v Ms Shakespeare (a Pseudonym), the plaintiff sought to identify a potential cause of action against the defendant through preliminary discovery. The plaintiff, a recruitment agency, alleged that the defendant, a former employee, had breached a non-compete clause in her employment contract. The court was required to determine whether the plaintiff was entitled to discover documents that would assist in identifying a potential cause of action against the defendant.

The central legal issue was whether the plaintiff was entitled to preliminary discovery to identify a potential cause of action. The court considered the general principles of civil procedure and the specific provisions of the Uniform Civil Procedure Rules. The court also had to consider the principles governing costs and the general rule that costs follow the event. The court examined whether the exception to this general rule applied, given that the consent orders were made without a merits hearing.

The court held that the plaintiff was entitled to preliminary discovery to identify a potential cause of action. The court found that the plaintiff had made out a prima facie case for the discovery sought. The court also found that the exception to the general rule on costs applied in this case. The court noted that the consent orders were made without a merits hearing, and the parties had agreed to the terms of the orders. The court held that the costs incurred by the plaintiff in obtaining the preliminary discovery were properly recoverable under the exception to the general rule.

The court made orders that the defendant pay the plaintiff's costs of the application for preliminary discovery, including the costs of two counsel. The court also made orders that the defendant pay the plaintiff's costs of preparing and serving the application, including the costs of one solicitor. The court held that the exception to the general rule on costs applied in this case, given that the consent orders were made without a merits hearing.