New South Wales Consolidated Regulations

UNIFORM CIVIL PROCEDURE RULES 2005 - REG 5.2

5.2 Discovery to ascertain prospective defendant's identity or whereabouts

(cf Federal Court Rules , Order 15A, rules 3, 5 and 9)

(1) This rule applies if it appears to the court that--

(a) the applicant, having made reasonable inquiries, is unable to sufficiently ascertain the identity or whereabouts of a person (
"the person concerned" ) for the purpose of commencing proceedings against the person, and

(b) some person other than the applicant (
"the other person" ) may have information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the person concerned.

(2) The court may make either or both of the following orders against the other person--

(a) an order that the other person attend the court to be examined as to the identity or whereabouts of the person concerned,

(b) an order that the other person must give discovery to the applicant of all documents that are or have been in the other person's possession and that relate to the identity or whereabouts of the person concerned.

(3) A court that makes an order for examination under subrule (2)(a) may also make either or both of the following orders--

(a) an order that the other person must produce to the court on the examination any document or thing that is in the other person's possession and that relates to the identity or whereabouts of the person concerned,

(b) an order that the examination be held before a registrar.

(4) An order under this rule with respect to any information, document or thing held by a corporation may be addressed to any appropriate officer or former officer of the corporation.

(5) A person need not comply with the requirements of an order under subrule (2)(a) unless conduct money has been handed or tendered to the person a reasonable time before the date on which attendance is required.

(6) If the other person incurs expense or loss in complying with an order under subrule (2)(a), and the expense or loss exceeds the amount paid to the person under subrule (5), the court may order the applicant to pay to that person an amount sufficient to make good the expense or loss.

(7) Unless the court orders otherwise, an application for an order under this rule--

(a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of information, documents or things in respect of which the order is sought, and

(b) must, together with a copy of the supporting affidavit, be served personally on the other person.

(8) An application for an order under this rule is to be made--

(a) if it is made in relation to proceedings in which the applicant is a party, by notice of motion in the proceedings, or

(b) in any other case, by summons.

(9) This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to claim or cross-claim against a person who is not a party to the proceedings.