Wadren Pty Ltd v Probuild Constructions (Aust) Pty Ltd

Wadren Pty Ltd sought preliminary discovery from Probuild Constructions (Aust) Pty Ltd, under rule 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), of documents relating to the identity of co-insurers under an insurance policy, confirmation of indemnity or denial of indemnity, and documents relevant to the availability of insurance funds if Wadren succeeded in its claim. The dispute arose from a building contract and the adequacy of insurance coverage. The Supreme Court of Victoria was tasked with determining whether Wadren had provided sufficient information to justify the commencement of proceedings, and if there was a reasonable cause to believe that Wadren had a right to relief for breach of contract or misrepresentation.

The court held that Wadren did not have sufficient information to decide whether to commence proceedings against Probuild for breach of contract due to the absence of privity between the parties. Furthermore, Wadren had not provided sufficient evidence for relief based on misrepresentation, misleading or deceptive conduct. The court noted that the power to order preliminary discovery was constrained by the words 'right to obtain relief' in rule 32.05, which did not extend to documents relating to the likelihood of recovery if a claim was successful. The court also considered the confidentiality of insurance documents and declined to order their production, as the documents were beyond those agreed or ordered to be produced and were potentially commercially sensitive or legally privileged.

In light of the above, the court declined to order preliminary discovery of the documents in question. Additionally, the court declined to make consent orders as not all parties were agreed. The court's reasoning was based on the discretion granted under rule 32.05 of the Rules, the confidentiality of insurance documents, and the requirement that consent orders should only be made when 'all parties to a proceeding are agreed' as per rule 59.07 of the Rules. Consequently, the court ruled against Wadren's application for preliminary discovery.