Full Court Press: Preliminary Discovery And Arbitration Agreements In A Basketball Showdown

In brief

In most jurisdictions in Australia, a prospective plaintiff can obtain preliminary discovery orders from a Court to ascertain whether it has a right to obtain relief from a prospective defendant, before it commences any substantive proceeding.

This blog post explores the availability of preliminary discovery where parties are subject to arbitration agreements, drawing on recent judicial decisions to provide practical insights.

Refresher on preliminary discovery

Generally, a prospective plaintiff may obtain preliminary discovery, if it can demonstrate that:

1. it has reasonable cause to believe that there may be a right to relief against the prospective defendant and that the prospective defendant is likely to have documents which would assist the prospective plaintiff decide whether to commence a substantive proceeding; and