Poole v Australian Pacific Touring Pty Ltd

The case of Poole v Australian Pacific Touring Pty Ltd involved a dispute between Ms Poole, who had booked a river cruise through an agent, and APT, the travel service provider. Ms Poole sought an order for preliminary discovery of certain documents from APT under the Federal Court Rules 2011 (Cth) r 7.23. The legal issues before the Court were whether the test for preliminary discovery differed from the previous rule, whether a prospective applicant must reasonably believe they may have a right to obtain relief, whether evidence of belief must be given personally by the applicant, whether the applicant's right to relief was sufficiently articulated, and the relevance of documents sought in informing the applicant's decision to start proceedings.

The Court found that the test for preliminary discovery under r 7.23 did not differ from the previous rule, and that a prospective applicant must reasonably believe they may have a right to obtain relief. The Court also found that evidence of belief did not have to be given personally by the applicant, and that the applicant's right to relief was sufficiently articulated if it was reasonably arguable. Finally, the Court found that documents sought in a preliminary discovery application must be relevant to informing the applicant's decision to start proceedings.

The Court ordered that APT give preliminary discovery as sought by Ms Poole. The Court found that the documents sought were relevant to informing Ms Poole's decision to start proceedings, and that she had a reasonably arguable right to relief under the Australian Consumer Law. The Court also found that the burden on APT to provide the documents was not excessive, and that a confidentiality regime could be put in place to protect APT's commercial interests.

In terms of costs, the Court ordered that if proceedings were commenced within 60 days of the preliminary discovery process being completed, then the costs of the application and the reasonable expenses and any related reasonable costs of giving preliminary discovery be costs in the cause. If proceedings were not commenced within 60 days, then Ms Poole would pay APT's costs of the application and the reasonable expenses and any related reasonable costs of giving preliminary discovery. The parties were directed to provide either agreed or competing draft orders to give effect to these reasons within 14 days of the date of the judgment.