Kusa v Vong (trading as Allen Vong and Associates)

Kusa, the plaintiff, filed a lawsuit against Vong, who traded under the name Allen Vong and Associates, seeking damages for alleged professional negligence. The case was before the ACT Supreme Court. The plaintiff sought preliminary discovery to ascertain whether Vong, who was known to be involved in the events in question, was the correct defendant. The court was required to determine the principles governing applications for preliminary discovery, particularly the distinctions between rules 650 and 651 of the Court Procedures Rules 2006 (ACT). Furthermore, it needed to ascertain whether the application under rule 650 could be used to identify the correct potential defendant and whether there was an identifiable cause of action.

The court held that rule 650 and rule 651 of the Court Procedures Rules 2006 (ACT) are distinct in their purposes and application. Rule 650 pertains to the discovery of documents and information to identify parties or causes of action, while rule 651 is related to the discovery of documents to prepare for trial. An application under rule 650 cannot be used to ascertain which of the known persons is the correct potential defendant. The plaintiff must have an identifiable cause of action and a basis for the claim before making such an application. The court also found that the plaintiff's application did not meet the threshold for preliminary discovery as it did not present a clear cause of action.

The application for preliminary discovery was dismissed. Unless the second defendant filed written submissions seeking any other order within 14 days, there would be no order regarding costs. The plaintiff was required to have a more defined cause of action and a basis for the claim before seeking preliminary discovery. The distinctions between rules 650 and 651 of the Court Procedures Rules 2006 (ACT) were highlighted to ensure proper application of the rules in future cases.