Introduction to Preliminary Disclosure in Queensland
Chapter 7, Part 1 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) gives the Queensland courts an express power to order preliminary disclosure. The provisions were introduced by the Uniform Civil Procedure (Preliminary Disclosure) Amendment Rule 2021 and commenced on 10 December 2021.
The rules address two problems that arise regularly in prospective litigation.
The first is an identity or location problem. A person may have a viable claim but know the proposed wrongdoer only by an online account, trading name, transaction record or other incomplete identifier. Alternatively, the person’s identity may be known but their whereabouts cannot be established sufficiently to commence and serve proceedings. Rule 208C permits an order against another person who may hold information, a document or a thing capable of assisting with that problem.
The second is a decision-making problem. The prospective defendant is identifiable, but a particular document is needed before the applicant can make a responsible decision about commencing proceedings. Rule 208D applies where proceeding without reference to that document would be impracticable, there is an objective likelihood that the prospective defendant has or is likely to have possession or control of it, inspection would assist the applicant’s decision, and the interests of justice require disclosure.
That is quite different from ordinary disclosure. Ordinary disclosure generally occurs after proceedings have begun, when the issues have been defined by pleadings or otherwise identified in the proceeding. Preliminary disclosure addresses a narrower anterior question: can the applicant identify the person to sue, or obtain the document genuinely needed to decide whether proceedings should be brought?
Queensland courts were not entirely without power before 2021. The Supreme Court had equitable jurisdiction derived from Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133. In Re Pyne [1997] 1 Qd R 326, the Court accepted that preliminary discovery could be ordered in its equitable auxiliary jurisdiction where the respondent was not merely a witness and the interests of justice warranted relief. Bond J considered the scope of that jurisdiction in QNI Metals Pty Ltd v Vannin Capital Operations Ltd [2020] QSC 292, including whether it was confined to identifying a proposed defendant.
Part 1 now supplies the primary procedural framework. The statutory language must be applied as enacted. Authorities concerning the New South Wales and Federal Court rules remain useful, but differences in wording matter, particularly under r 208D.
Background to Preliminary Disclosure in Queensland
Introduction of the Preliminary Disclosure Rules
The 2021 amendment inserted a new Part 1 into Chapter 7 and moved the existing disclosure provisions into Part 2. The operative preliminary disclosure provisions are now rr 208B–208G. Former r 208A confined Part 1 to proceedings in the Supreme Court. It was repealed with effect from 16 February 2024, removing that restriction and making the preliminary disclosure regime available in the District Court and Magistrates Court within their respective jurisdictions. In Allianz Australia Insurance Ltd v Australia and New Zealand Banking Group Ltd [2025] QMC 24, the Brisbane Magistrates Court applied r 208C and ordered a bank to produce documents identifying and locating the holder and authorised operators of an account into which money had mistakenly been transferred.
The structure of the Part is straightforward:
- r 208B defines the central terms;
- r 208C concerns the identity or whereabouts of a prospective defendant;
- r 208D permits preliminary disclosure from a prospective defendant;
- r 208E permits security for costs and expenses;
- r 208F preserves privilege; and
- r 208G gives the Court power over costs and other expenses.
Rules 208C and 208D should not be treated as interchangeable routes to the same result. Under r 208C, the respondent to the application may be an innocent intermediary whose records can help identify or locate the person to be sued. Under r 208D, the order is directed to the prospective defendant and concerns a document needed for the decision whether to commence proceedings against that person.
Key Definitions — Rule 208B
The definitions in r 208B do substantive work. They should be addressed in the evidence rather than treated as drafting formalities.
Applicant
An “applicant” is “a person who applies for an order under this part”. The definition covers applications under both rr 208C and 208D.
Prospective Defendant
A “prospective defendant”, in relation to an applicant, is “a person against whom the applicant intends to start a proceeding”.
That definition prevents the rules being used to explore whether litigation of some unidentified kind might be available. There must be a genuine, positively held intention to proceed against the relevant person, although the intention can be conditional.
The conditional aspect is essential to the operation of both rules. Under r 208C, the applicant may intend to sue the person responsible for particular conduct if the information produced shows who that person is. Comparable wording was considered in Roads & Traffic Authority (NSW) v Australian National Car Parks Pty Ltd (2007) 47 MVR 502; [2007] NSWCA 114 at [12]. The necessary intention was capable of existing even though the defendant’s name was not yet known.
Rule 208D contains an apparent tension. The definition assumes an intention to start a proceeding, while r 208D(1)(d) contemplates that inspection will assist the applicant “to make the decision to start the proceeding”. Brown J resolved that tension in Blue Dog at [32]–[33]. The applicant may intend to commence if inspection is permitted and the contents of the document make it appropriate to proceed. What is not permitted is using preliminary disclosure merely to improve a case that the applicant has already decided to bring.
Identity
The “identity” of a prospective defendant includes the person’s name and occupation, if any. The definition is inclusive. A name may not be enough where several people share it or where further information is required to distinguish the person responsible for the relevant conduct.
Whereabouts
“Whereabouts” includes a place of residence, registered office, place of business or another location of the prospective defendant. Rule 208C may therefore be used where the defendant is known but cannot, despite reasonable inquiries, be located sufficiently for the contemplated proceeding.
Document
For Part 1, “document” includes a class of documents. An applicant under r 208D need not always identify a single record by date, author and title. A properly defined class may be sought, provided the class is tied to the statutory purpose and the other elements of the rule are established.
This is not an invitation to frame broad categories by general relevance. A description such as “all documents relating to the dispute” is unlikely to demonstrate why each document is needed to decide whether to commence proceedings. The categories should reflect the actual information gap identified in the supporting affidavit.
Rule 208C — Identifying or Locating a Prospective Defendant
Rule 208C(1) provides:
“The court may make an order under subrule (2) if it appears to the court that—
(a) an applicant may have a right to relief against a prospective defendant; and
(b) the applicant has made reasonable inquiries, but is unable to sufficiently ascertain the identity or whereabouts of the prospective defendant; and
(c) another person may have information, or possession or control of a document or thing, that may assist in ascertaining the identity or whereabouts of the prospective defendant.”
The requirements are cumulative. The definition of “prospective defendant” adds the need for an intention to start proceedings against the person once sufficiently identified or located.
When Can an Order Be Made Under Rule 208C?
The Applicant May Have a Right to Relief
The applicant need not prove the proposed claim. That would be unrealistic where the defendant has not yet been identified. There must, however, be enough evidence to show that a recognised right to relief may exist.
In O’Connor v O’Connor [2018] NSWCA 214 at [30], Simpson AJA explained that an applicant for preliminary discovery need not establish a prima facie case or formulate the proposed cause of action with pleading precision. Some particularisation remains necessary so the Court can assess whether the asserted right may exist.
The affidavit should therefore identify the material facts, the legal basis of the possible claim and the relief contemplated. A bare assertion that the unknown person “may be liable” does not give the Court much with which to work.
Reasonable Inquiries Must First Be Made
Rule 208C is not a substitute for sensible investigation. The applicant must first make reasonable inquiries and remain unable to ascertain the identity or whereabouts sufficiently.
Reasonableness is assessed objectively in the circumstances. In Roads & Traffic Authority (NSW) v Australian National Car Parks Pty Ltd at [14], Mason P recognised that the availability of another theoretical method of inquiry does not automatically make resort to preliminary discovery unreasonable. Cost, delay and uncertainty are relevant.
The evidence should say what was done, when it was done and what resulted. Searches, correspondence, requests to intermediaries, public-register inquiries and attempts to trace contact details should be described with enough specificity to permit an assessment. Saying simply that “all reasonable inquiries have been made” is a conclusion, not evidence.
Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [51]–[53] also emphasises the objective nature of the inquiry. Every conceivable avenue need not be exhausted, but any obvious avenue left unexplored should be explained.
The Applicant Must Remain Unable to Sufficiently Ascertain Identity or Whereabouts
The word “sufficiently” is practical. An applicant may know an online username, an account number or a business name without knowing the natural person or corporation that should be named as defendant. Equally, the applicant may know the defendant’s name but lack an address or other location adequate to commence and serve proceedings.
The affidavit should identify precisely what remains unknown and why that missing information matters. If the applicant already has enough information to commence against the proper party, r 208C is not available merely because further identifying information would be useful.
Another Person Must Have Potentially Useful Information or Material
The respondent need only “may have” information, or possession or control of a document or thing, that “may assist”. Certainty is not required. The evidence must nevertheless establish a rational connection between the respondent, the requested material and the identity or location problem.
Mason P put the point neatly in Roads & Traffic Authority (NSW) v Australian National Car Parks Pty Ltd at [17]:
“The information, document or thing need not be the last piece in a [jigsaw] puzzle.”
The information can be one step in the process. It cannot be unrelated material sought in the hope that something useful might emerge.
The Queensland expression “may assist” sets a slightly lower threshold than the New South Wales expression “tends to assist”: Blue Dog at [27]. A further difference is temporal. Rule 208C refers to a person who may have possession or control of a document or thing; it does not expressly extend to a person who merely had possession or control in the past.
Intention to Commence Proceedings
Brown J held in Blue Dog at [21] that the applicant must have a genuine, positively held intention to bring proceedings, although that intention may depend upon the information obtained. The point should be dealt with directly in the affidavit. Evidence that the applicant will consider its options after seeing what turns up is weaker than evidence identifying the contemplated claim and confirming an intention to proceed against the responsible person if the requested information identifies them.
Orders Available Under Rule 208C
Once the threshold requirements are met, the Court may order the other person to:
- attend and give evidence relating to the identity or whereabouts of the prospective defendant; or
- produce to the applicant a document or thing relating to the identity or whereabouts of the prospective defendant.
If attendance is ordered, the Court may also require production of a document or thing to the Court or direct that the evidence be given before a registrar: r 208C(3).
The form of relief should match the problem. Where a platform provider holds subscriber records, targeted production may be sufficient. Where the relevant information cannot sensibly be identified in advance or requires explanation, attendance to give evidence may be more appropriate.
The Court Retains a Discretion
Meeting r 208C(1) enlivens the power; it does not create an entitlement. The word “may” preserves the Court’s discretion.
The intrusive effect of the proposed order, the strength of the apparent claim, alternative remedies, confidentiality, proportionality and the burden on an innocent respondent may all bear on the result. A limited order or conditions concerning use, confidentiality and reasonable expenses may answer concerns that would otherwise justify refusing relief.
How to Apply Under Rule 208C
Form of the Application
Under r 208C(5), an application relating to an existing proceeding to which the applicant is a party is made by application in that proceeding. Otherwise, it must be made by originating application.
In Blue Dog at [53], Brown J treated an originating application for relief under rr 208C and 208D as a “claim” for the rules concerning service outside Australia.
Supporting Affidavit
Unless the Court orders otherwise, r 208C(4)(a) requires an affidavit stating the facts relied upon and the information, document or thing in respect of which the order is sought.
A useful affidavit will ordinarily address:
- the conduct said to give rise to a possible right to relief;
- the proposed legal basis of the claim;
- the applicant’s intention to commence against the responsible person;
- what is known about that person;
- each material inquiry already made and its result;
- what remains unknown;
- why the respondent may hold the requested information or material; and
- how that information or material may assist.
Exhibits should support the chronology rather than overwhelm it. The deponent still needs to explain the significance of the documents relied upon.
Identifying the Information, Document or Thing Sought
The originating application and proposed orders should be capable of enforcement without further debate about what they mean. A request for “all identifying information” may be workable only if the relevant account, transaction, publication or period is defined. Wider language requires a stronger explanation.
Brown J declined in Blue Dog at [46] to make one proposed order in its existing form because it was too broad. That is a practical warning. If the legitimate purpose can be achieved by a narrower category, the narrower category is more likely to survive discretionary scrutiny.
Personal Service
Unless the Court orders otherwise, the application and supporting affidavit must be served personally on the other person: r 208C(4)(b). An originating application is also subject to r 105.
Rules 106 and following govern personal service on individuals and other categories of respondent. If service in the manner required by the rules is impracticable, r 116 permits the Court to substitute another method and specify the steps to be taken to bring the document to the respondent’s attention. Informal service under r 117 is different. It applies where the document was not served as required but the document or a copy nevertheless came into the respondent’s possession. The evidence should address the particular precondition relied upon rather than treating substituted and informal service as interchangeable alternatives.
Service Outside Australia
Overseas respondents require separate attention to Chapter 4, Part 7. In Blue Dog, the originating application fell within the rules permitting service outside Australia without prior leave. The supporting affidavit was different: it was not originating process. Brown J identified that procedural gap at [58] and granted leave nunc pro tunc for service of the affidavit.
The lesson is not that every preliminary disclosure application may be served overseas without leave. The basis for service of the originating process, the mode of service and the authority to serve each accompanying document must be checked separately.
Drafting the Orders Sought
The application, affidavit and draft order should perform different but complementary functions. The application identifies the relief. The affidavit establishes the facts engaging the rule. The draft order states exactly what the respondent must do, by when, and how.
Consider whether the order should address electronic production, confidentiality, redaction, permissible use, reasonable compliance expenses and liberty to apply. Those matters are easier to resolve when raised in the draft than after an otherwise valid order produces a practical dispute.
Rule 208D — Preliminary Disclosure From a Prospective Defendant
Rule 208D is directed to a document held, or likely to be held, by the person against whom proceedings are contemplated. It is not an alternative form of ordinary discovery.
Rule 208D(1) provides:
“The court may make an order under subrule (2) if it appears to the court that—
(a) an applicant may have a right to relief against a prospective defendant; and
(b) it is impracticable for the applicant to start a proceeding against the prospective defendant without reference to a document; and
(c) there is an objective likelihood that the prospective defendant has, or is likely to have, possession or control of the document; and
(d) inspection of the document would assist the applicant to make the decision to start the proceeding; and
(e) the interests of justice require the order to be made.”
Each condition must appear to the Court before the discretion in r 208D(2) is enlivened: Blue Dog at [30].
The Five Requirements Under Rule 208D
The Applicant May Have a Right to Relief
As under r 208C, the applicant need not prove a prima facie case. The contemplated claim must still rest on a recognised legal basis and be explained with enough particularity to show that a right to relief may exist.
The requirement is not satisfied by identifying a commercial grievance and suggesting that documents might reveal a cause of action. The affidavit should connect the known facts to the proposed relief, while candidly identifying the issue that cannot responsibly be resolved without the requested document.
It Must Be Impracticable to Commence Proceedings Without the Document
This is the distinctive Queensland threshold. Usefulness, convenience and a desire to plead with greater detail are not enough.
In Fairman, purchasers under off-the-plan apartment contracts sought documents concerning substantial construction delays. Several contracts had a sunset date of 28 February 2025. The applicants needed to decide, within a compressed period, whether to commence proceedings concerning the developers’ failure to complete.
Treston J accepted that “impracticable” sets a somewhat higher threshold than the corresponding New South Wales rule, but rejected any equation with impossibility. Her Honour said:
“The word is not intended to mean impossible. If it did, the rule could easily have said that.”
The expression carries concepts of disproportionate expenditure of time and resources and procedural efficiency consistent with r 5. The applicants could technically have filed proceedings. The problem was that, without at least some of the documents, they would have been forced to make assumptions that might later prove unsustainable and become expensive mistakes.
The focus is practical feasibility. Why can the applicant not responsibly and efficiently commence without this document? What assumption would otherwise have to be made? What time, cost or procedural consequence follows? General statements that the document would provide certainty will rarely be enough.
Objective Likelihood of Possession or Control
The likelihood required by r 208D(1)(c) is objective. The applicant’s belief must be supported by facts.
Those facts may come from the prospective defendant’s contractual role, correspondence referring to the record, a statutory record-keeping obligation, involvement in creating the document or the ordinary course of the transaction. Evidence that the document once existed does not necessarily establish present or likely possession or control.
In Fairman, the respondents had complied with an earlier order requiring a confidential affidavit listing documents. That circumstance supported the objective conclusion that the documents were likely to be in their possession.
Inspection Must Assist the Decision to Commence Proceedings
The document must assist the decision whether to start the proceeding, not merely make the applicant’s evidence stronger after that decision has been made.
This does not mean the applicant must be wholly undecided. Blue Dog permits a conditional intention: the applicant intends to commence if inspection is allowed and the contents justify doing so. The affidavit should explain the decision that remains open and how the document bears upon it.
The distinction is sometimes fine. A document may reveal whether a contractual obligation was breached, whether a limitation defence is likely to defeat the claim, whether the likely quantum justifies the cost of proceedings or whether a proposed defendant has a complete answer. Those matters can genuinely affect whether to sue. Seeking documents simply to obtain particulars, test a witness or improve proof of an allegation already resolved in the applicant’s mind is different.
The Interests of Justice Must Require the Order
Rule 208D(1)(e) is an express additional safeguard not found in the same form in the New South Wales or Federal Court provisions.
The word “require” should not be reduced to a general balancing exercise in which disclosure is ordered whenever it seems useful. The applicant’s need, the absence of a practical alternative, urgency, the burden of compliance, privacy, confidentiality and possible prejudice to both sides are relevant.
The applicants in Fairman faced an imminent contractual deadline and lacked a legitimate alternative means of obtaining the documents in time. Those circumstances favoured an order. Treston J also recognised the countervailing concerns about fishing, privacy and legitimate commercial interests. The order was framed to allow later applications concerning deletion and redaction.
What Orders Can the Court Make?
Under r 208D(2), the Court may order the prospective defendant to disclose the document to the applicant or produce it to the Court, in either case as directed by the order.
Production to the Court may be appropriate where privilege, confidentiality or relevance must be determined before the applicant receives the material. Direct electronic disclosure may be efficient where the categories are settled and protective arrangements are adequate.
Rule 208D Is Not General Pre-Action Discovery
The five requirements confine the rule to a defined documentary obstacle. The applicant must identify the possible right to relief, the document or class, the practical impediment to commencement, the objective basis for possession or control, the decision-making utility of inspection and the circumstances requiring an order in the interests of justice.
That structure is inconsistent with a broad request for documents merely relevant to a possible dispute. Relevance is necessary, but it is not the statutory test.
The Court’s Discretion Under Rule 208D
Proportionality and the Scope of the Order
Even where r 208D(1) is satisfied, the Court “may” make an order. The categories should extend no further than the decision-making purpose proved by the affidavit.
In Fairman, the documents were identified in a confidential list and ordered to be disclosed electronically. The respondents had liberty to apply on 48 hours’ notice concerning deletions from the list or redactions to particular documents. That solution reflected the urgency of the application. It did not give the applicants unrestricted access to every record connected with the development.
Confidentiality Does Not Necessarily Defeat Disclosure
Commercial sensitivity is a real consideration, but it is not an automatic answer to r 208D. A confined category, redaction, limited access, a confidentiality regime or production to the Court may protect legitimate interests while allowing the rule to serve its purpose.
Applicants should anticipate these issues. If the likely confidentiality concern is obvious, a draft order that ignores it may make an otherwise justified application appear disproportionate.
The Practical Exercise of the Discretion
The prospective defendant has not yet been sued and may incur substantial expense responding to the application and complying with an order. The applicant, on the other hand, may face limitation, contractual or commercial consequences if forced to commence without the critical document.
The Court can address that imbalance through the scope of production, staged disclosure, security, costs, compliance expenses and conditions on use. Proportionality is not separate from the rule’s purpose; it is part of deciding what justice requires before ordinary litigation has begun.
Procedure for a Rule 208D Application
Commencing the Application
Rule 208D(4) mirrors r 208C(5). If the application relates to an existing proceeding to which the applicant is a party, it is made by application in that proceeding. Otherwise, an originating application is required.
Supporting Affidavit
Unless the Court orders otherwise, the affidavit must state the facts relied upon and the document in respect of which the order is sought: r 208D(3)(a).
The affidavit should address each paragraph of r 208D(1), but it need not read like a checklist. The more persuasive course is usually to explain the prospective dispute coherently, identify the unresolved decision, then show why the requested document is both likely to exist within the prospective defendant’s possession or control and necessary to resolve that decision.
Evidence of requests for voluntary provision can be significant. A refusal, incomplete response or offer subject to conditions may affect impracticability, the interests of justice and costs. In Fairman, the respondents’ earlier offer to provide some documents under confidentiality undertakings was considered, although it did not ultimately defeat the application.
Identifying the Documents Sought
Rule 208B permits a class of documents, but the class must be intelligible and confined. Dates, counterparties, subject matter, project stages and document types may assist. Categories copied from ordinary disclosure requests often fail to identify the particular documentary deficiency said to make commencement impracticable.
Personal Service
Unless otherwise ordered, the application and supporting affidavit must be served personally on the prospective defendant: r 208D(3)(b). Rule 105 separately requires personal service of an originating application.
Service Outside Australia
The service analysis in Blue Dog applies here as well. Counsel must identify the jurisdictional basis for service of the originating process and separately deal with the supporting affidavit and any other document that is not originating process. The method of service must also comply with the applicable rules and, where relevant, the law or convention governing service in the foreign country.
Drafting the Proposed Orders
The draft should identify the documents, the recipient, the method and deadline for disclosure, and any mechanism for privilege or confidentiality objections. Where production is extensive, staged categories or an initial list may reduce cost and permit genuine issues to be isolated.
Costs, Security and Privilege
The application should not treat rr 208E–208G as an afterthought. The respondent may seek security before undertaking a costly search. Privileged documents require a procedure consistent with r 208F. Costs of the application and expenses of compliance may be allocated differently, as occurred in Fairman.
Fairman v Jonelca Holdings Pty Ltd [2025] QSC 40
Background
The applicants had entered a series of off-the-plan contracts, beginning in December 2020, for apartments in the Boutique Chevron development. Construction remained incomplete. Several contracts allowed either party to terminate if the community titles scheme was not registered by the sunset date of 28 February 2025.
The developers had attributed delay to construction-cost escalation, funding difficulties and the need for further valuations and quantity-surveyor reports. One applicant, a construction manager, relied on drone footage and other material suggesting that work had ceased for an extended period even though comparatively little remained to be completed.
The purchasers requested information and documents in correspondence. Some material was provided; other material was offered on confidentiality terms that restricted access by the clients themselves. The originating application under r 208D was heard urgently on 7 February 2025.
“Impracticable” Does Not Mean Impossible
The central dispute concerned r 208D(1)(b). Treston J accepted that the Queensland wording imposed a somewhat higher threshold than the New South Wales preliminary discovery rule. Drawing on Curtis v Ramsay Builders Pty Ltd [2024] VSC 151 at [23] and Jayne v National Coal Board [1963] 2 All ER 220, her Honour distinguished impracticability from impossibility.
The purchasers could file a proceeding without the documents. That was not the end of the inquiry. Doing so would require a series of assumptions that might prove unsustainable and become expensive mistakes. The Court treated disproportionate expenditure of time and resources, procedural efficiency and the imminent sunset date as relevant to whether commencement without the documents was practicable.
The decision should not be read as allowing preliminary disclosure whenever filing on incomplete information involves forensic risk. Most litigation does. Fairman involved a specific documentary need, prior efforts to obtain the material and a deadline that materially affected the applicants’ contractual position.
Objective Likelihood of Possession or Control
The respondents had filed a confidential affidavit listing documents under an earlier order of Davis J. That provided an objective basis to conclude that the documents were likely to be in their possession. No express admission was required.
Alternative Means of Obtaining the Documents
The respondents’ offer to provide further material subject to confidentiality undertakings was relevant. Treston J initially considered whether the purchasers’ refusal of that offer affected both impracticability and the interests of justice. Her Honour described the refusal as calculated and risky, but ultimately did not regard it as persuasive against relief.
The point has broader application. A prospective applicant who rejects a reasonable means of obtaining the material may struggle to prove that court-ordered disclosure is required. The terms of any offer, who may inspect, the time available and whether the documents offered actually address the decision in question will matter.
Orders Made
The respondents were ordered to provide a copy of the confidential list and disclose the specified documents electronically. They had liberty to apply on 48 hours’ notice concerning deletion or redaction. They were ordered to pay the applicants’ costs of the originating application; their costs of compliance were reserved.
Those orders show the range of matters that can be separated. Entitlement to disclosure, protection of particular information, costs of resisting the application and expenses of complying with the order need not all receive the same answer.
Rule 208E — Security for Costs and Expenses
Rule 208E provides:
“An order under this part may be made subject to a condition that the applicant give security for costs and expenses of the person against whom the order is to be made.”
The power applies to both rr 208C and 208D. It is broader than conventional security for the costs of defending substantive proceedings. Depending on the order sought, the relevant burden may include responding to the application, searching records, reviewing documents, obtaining legal advice about privilege, applying redactions and arranging production.
Security is discretionary. The likely work, expense, proportionality of the request and the parties’ circumstances will inform whether it should be required and in what amount. A respondent asserting that compliance will be unusually expensive should provide evidence rather than rely on general claims about burden.
Rule 208F — Privilege
A preliminary disclosure order does not abrogate privilege.
Claiming Privilege While Giving Evidence
Rule 208F(2) provides:
“If the order requires the person making the claim of privilege to attend to give evidence relating to the identity or whereabouts of the prospective defendant, the person may make the claim at the time of attending to give the evidence.”
This permits a claim to be made as the particular question or information arises during the examination.
Privilege Claims Over Documents or Other Information
Where r 208F(2) does not apply, written notice of the privilege claim must be served on the applicant within seven days after service of the order, unless the Court gives leave for a later claim. If challenged, the person claiming privilege must comply with r 213(2) and (3), including the affidavit requirements.
The timetable is short. A person served with a preliminary disclosure order should identify potential privilege issues promptly, particularly where the production period runs at the same time.
Rule 208G — Costs and Other Expenses
Rule 208G permits the Court to make costs orders concerning the applicant, the person against whom the order is made or sought, and any other party to the proceeding. The available costs include conduct money, an amount on account of expense or loss, the costs of making and serving a list, production for inspection and the costs of otherwise complying with the order.
Expenses of Complying With an Order
The costs of the application and the costs of compliance are distinct. A respondent may be ordered to pay the applicant’s costs after unsuccessfully resisting justified relief, while still having a proper claim for reasonable expenses incurred in carrying out a substantial production exercise.
That distinction was preserved in Fairman. The respondents were ordered to pay the costs of the originating application, but their compliance costs were reserved. Practitioners should address both categories expressly in proposed orders and submissions.
Preliminary Disclosure vs Ordinary Disclosure
Rule 211 imposes a continuing duty on a party to disclose documents in its possession or control that are directly relevant to an allegation in issue in the pleadings or, if there are no pleadings, a matter in issue in the proceeding.
That duty ordinarily arises after proceedings exist. Its scope is measured against defined issues. Preliminary disclosure is available only by court order and is measured against the narrower purposes in rr 208C and 208D.
Rule 222 provides a separate inspection mechanism once proceedings are on foot. If a party mentions a document in its pleadings, particulars or affidavits, another party may, by written notice, require that document to be produced for inspection and permit copies to be made. Unlike preliminary disclosure under r 208D, r 222 cannot be used to obtain documents from a prospective defendant before proceedings have commenced.
Interrogatories provide another means of obtaining information through written questions, but they may be delivered only with the Court’s leave. Under r 229, interrogatories may be delivered to a party or, for the limited purpose of deciding whether someone is an appropriate party to an existing or proposed proceeding, to a non-party. Leave will ordinarily depend on the Court being satisfied that no other reasonably simple and inexpensive means of proving the matter is likely to be available at trial. Interrogatories therefore serve a different purpose from preliminary disclosure and cannot be used as an unrestricted investigation of a possible claim.
The distinction has practical consequences. A r 208D applicant cannot seek every document that would be directly relevant if proceedings were already on foot. The applicant must show why inspection of the particular document will assist the unresolved decision whether to commence and why commencement without it is impracticable.
White J’s observation in Morton v Nylex Ltd [2007] NSWSC 562 at [33] remains useful:
“[P]reliminary discovery cannot be used to build up a case which an applicant has already decided, or could decide, to bring.”
Preliminary Disclosure vs Non-Party Disclosure
Non-party disclosure under Chapter 7, Part 3 also depends on an existing proceeding. A party may issue a notice under r 242 requiring a non-party to produce a document that is directly relevant to an allegation in issue, is in the respondent’s possession or control, and could be required at trial.
The procedure is ordinarily initiated by notice, not by first obtaining an order. An objection under r 245 stays the notice, after which the applicant may seek a decision under r 247.
A subpoena is another procedure for compelling evidence or the production of documents or things, ordinarily after a proceeding has commenced. Under r 414, the Court may issue a subpoena requiring a person to attend and give evidence, produce identified documents or things, or do both. A subpoena is directed to evidence required for a proceeding; it is not a general pre-action mechanism for discovering whether a viable claim exists or identifying a prospective defendant. Those pre-litigation problems are addressed more directly by rr 208C and 208D.
Rule 208C operates much earlier. The person from whom information is sought may be an intermediary rather than the wrongdoer, and the material need only be capable of assisting in identifying or locating the prospective defendant. Rule 208D is directed to the prospective defendant personally and serves the decision whether to sue. Non-party disclosure obtains evidence relevant to allegations already in issue.
Practical Steps Before Applying
Start by identifying the actual obstacle. If the problem is that the wrong person may be named or cannot be located, consider r 208C. If the proposed defendant is identifiable but a document is genuinely required before the decision to commence can be made, consider r 208D. If proceedings already exist and relevant documents are held by a stranger, Part 3 may be the proper procedure.
Request the material voluntarily where that course is realistic. The correspondence should identify what is sought and why, without overstating the applicant’s entitlement. A clear refusal or incomplete response may later provide useful evidence. A reasonable offer to provide the information may make a court application unnecessary or affect costs.
Build the affidavit around facts. Under r 208C, specify the inquiries made and the remaining identity or location problem. Under r 208D, explain the decision that remains unresolved, why commencement without the document is impracticable and the objective basis for believing the prospective defendant has it.
Draft the categories narrowly enough to be defended one by one. Then test the proposed order from the respondent’s position: Is it clear what must be produced? Does it capture privileged or commercially sensitive material unnecessarily? Is the deadline realistic? Does the order need a redaction process, confidentiality protection, staged compliance or liberty to apply?
Finally, deal with service, security, privilege, costs and compliance expenses before filing. They are part of the application, not administrative details to be settled after the substantive argument.
Conclusion — Key Takeaways
Rules 208C and 208D provide useful relief where a genuine pre-litigation information problem cannot reasonably be resolved another way. Their value lies in their precision. Rule 208C can identify or locate the person against whom relief is intended. Rule 208D can provide access to a document needed to decide whether to commence against an identified prospective defendant.
The same precision limits their use. The Court will expect a properly identified possible claim, evidence addressing the rule’s language and orders confined to the demonstrated need. Preliminary disclosure is not a rehearsal for ordinary discovery, and it is not a licence to investigate whether a claim might turn up.
Frequently Asked Questions About Preliminary Disclosure in Queensland
What is preliminary disclosure in Queensland?
Preliminary disclosure is a court procedure used to obtain limited information or documents before substantive proceedings are commenced. Under Chapter 7, Part 1 of the Uniform Civil Procedure Rules 1999 (Qld), it may help a prospective plaintiff identify or locate the person they intend to sue or inspect a document needed to decide whether proceedings should be commenced.
It is not general pre-action discovery. The information or documents sought must address the particular problem contemplated by rule 208C or rule 208D, and the Court retains a discretion whether to make an order.
Can I obtain documents before starting court proceedings in Queensland?
Yes, but only in defined circumstances. Rule 208D permits the Court to order preliminary disclosure from an identified prospective defendant where a particular document, or properly defined class of documents, is needed to make the decision whether to commence proceedings.
The applicant must establish each requirement in rule 208D. Among other things, commencing without the document must be impracticable, there must be an objective likelihood that the prospective defendant has or is likely to have possession or control of it, and inspection must assist the applicant’s decision. The interests of justice must also require disclosure.
What is the difference between rule 208C and rule 208D?
Rule 208C addresses an identity or location problem. It may be used where reasonable inquiries have not sufficiently established the identity or whereabouts of a prospective defendant, but another person may have information, a document or a thing that could assist.
Rule 208D applies where the prospective defendant is already identifiable, but a document is needed before the applicant can responsibly decide whether to sue that person. The respondent under rule 208C may be an innocent intermediary, such as a bank or another record holder. An order under rule 208D is directed to the prospective defendant.
How can I identify an unknown prospective defendant in Queensland?
An application may be made under rule 208C if the applicant may have a right to relief against a person whose identity or whereabouts cannot be sufficiently ascertained despite reasonable inquiries.
The applicant must identify another person who may have information or possess or control a document or thing capable of assisting. The Court may order that person to attend and give evidence, produce material to the Court, or both. The applicant must also hold a genuine intention to commence proceedings against the responsible person if the requested information identifies or locates them.
What are “reasonable inquiries” under rule 208C?
What amounts to reasonable inquiries depends on the circumstances and the information already available. The applicant should take sensible investigative steps before seeking the Court’s assistance and keep a clear record of them.
The supporting affidavit should explain what searches, correspondence or other inquiries were undertaken, what those inquiries revealed, and precisely what remains unknown. Rule 208C is not available simply because additional information would be useful. The unresolved identity or location issue must be significant enough to prevent the prospective defendant from being sufficiently identified or located for the contemplated proceeding.
What must be proved in a rule 208D preliminary disclosure application?
Rule 208D contains five cumulative requirements. The Court must be satisfied that:
- the applicant may have a right to relief against the prospective defendant;
- it is impracticable to commence the proceeding without reference to the document;
- there is an objective likelihood that the prospective defendant has or is likely to have possession or control of the document;
- inspection would assist the applicant in deciding whether to commence the proceeding; and
- the interests of justice require the order.
Satisfying those requirements gives the Court power to order disclosure. It does not create an automatic entitlement to it.
What does “impracticable to commence proceedings” mean under rule 208D?
“Impracticable” does not mean that commencing proceedings must be literally impossible. As the Supreme Court of Queensland explained in Fairman v Jonelca Holdings Pty Ltd [2025] QSC 40, the assessment may include practical considerations such as time, cost, available resources and procedural efficiency.
Ordinary uncertainty or forensic risk will not necessarily be enough. The applicant should identify a specific documentary need and explain why proceedings cannot sensibly be commenced without resolving it. Prior requests for the document, the absence of another timely means of obtaining it and any genuine deadline may be relevant.
Can preliminary disclosure be used as a fishing expedition?
No. Preliminary disclosure cannot be used to search broadly for a possible case or obtain every document that might later become relevant. Rule 208D is narrower than ordinary disclosure after proceedings have commenced.
The applicant must identify the document or class of documents with sufficient precision and connect it to the unresolved decision whether to sue. Broad requests for all records relating to a transaction, project or commercial relationship are vulnerable to refusal or restriction. The Court may confine the categories, permit redactions, impose confidentiality arrangements or require production to the Court rather than directly to the applicant.
How do I apply for preliminary disclosure in a Queensland court?
Unless the application relates to an existing proceeding to which the applicant is already a party, it must be commenced by originating application. A supporting affidavit must state the material facts and identify the information, document or thing sought. Unless the Court orders otherwise, the application and affidavit must be personally served on the respondent.
The affidavit should address the applicable rule through evidence rather than bare assertions. For rule 208C, that includes the inquiries already made and the remaining identity or location problem. For rule 208D, it includes the unresolved decision, the need for the document and the objective basis for believing it is held by the prospective defendant.
Who pays the costs of a preliminary disclosure application?
Under rules 208E and 208G, the Court has broad powers concerning security, legal costs and the expenses of complying with a preliminary disclosure order. A respondent may seek security before undertaking an expensive search, review or production exercise.
The costs of deciding the application and the costs of complying with an order are distinct. Compliance expenses may include searching records, reviewing documents, preparing a list, addressing privilege, applying redactions and producing material for inspection. The Court can determine which party should bear those amounts. Privilege is preserved by rule 208F, and written privilege claims generally must be made within the time specified by that rule unless the Court grants leave.
