O'Connor v O'Connor

The applicants, O'Connor and O'Connor, appealed to the Court of Appeal of New South Wales against a decision of the Supreme Court that dismissed their application for preliminary discovery. The dispute concerned documents relating to negotiations leading to the acquisition of a company, which the applicants sought to obtain to establish their entitlement to make a claim for relief.

The central legal issues before the Court of Appeal were whether the Supreme Court erred in dismissing the application for preliminary discovery for failure to satisfy the requirements of rule 5.3(1) of the *Uniform Civil Procedure Rules 2005* (NSW), and whether such dismissal involved an impermissible determination of the merits of the applicants' claim at an interlocutory stage. The Court also considered whether discovery could be granted for documents relating solely to the quantum of a claim.

The Court of Appeal found that the Supreme Court had erred in its approach. It held that the threshold for obtaining preliminary discovery under rule 5.3(1) is not as high as that required for a final determination of the merits of a claim. The Court reasoned that the purpose of preliminary discovery is to enable a party to ascertain whether they have a cause of action and, if so, to identify the parties against whom it may be brought. The Court concluded that the applicants had demonstrated a sufficient entitlement to make a claim for relief to warrant the grant of preliminary discovery, and that the documents sought were relevant to establishing that entitlement.

Consequently, the Court of Appeal allowed the appeal, set aside the judgment of the Supreme Court, and ordered the first and second respondents to provide discovery of the specified documents within 42 days. The Court also ordered that the first and second respondents pay the costs of the appellants on the appeal and in the Supreme Court proceedings.