The Full Court's decision should ensure that the
preliminary discovery process remains a real weapon in the armoury
of rights holders who suspect that their rights are being
infringed.
How can a party assess if litigation is worth the cost before
launching it? Preliminary discovery is a mechanism by which a
prospective applicant, which considers that it might have a legal
claim against another party, can obtain relevant documents prior to
the commencement of substantive proceedings, in order to assess the
merits of its potential claim. But what must the applicant
show?
The Full Federal Court decision of Pfizer Ireland
Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193 makes
it clear that a prospective applicant seeking an order for
preliminary discovery only needs to have a reasonable belief that
it may have the right to obtain relief from a
prospective respondent.
