POLICE ASSOCIATION OF SOUTH AUSTRALIA & ORS v STRANGE [2026] SASCA 56

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE DART) CIV-24- 006072 First Appellant: POLICE ASSOCIATION OF SOUTH AUSTRALIA Counsel: MR C JACOBI KC WITH MR B NARULA - Solicitor: LIESCHKE & WEATHERILL Second Appellant: POLICE ASSOCIATION OF SOUTH AUSTRALIA SECRETARY BERNADETTE ZIMMERMAN Counsel: MR A HILLARY - Solicitor: WEARING & BLAIRS Third Appellant: POLICE ASSOCIATION OF SOUTH AUSTRALIA PRESIDENT MARK CARROLL Counsel: MR P CAMPBELL - Solicitor: HWL EBSWORTH LAWYERS Respondent: SAMANTHA STRANGE Counsel: MR H ABBOTT SC WITH MR M MANETTA - Solicitor: DEWAR LEGAL BARRISTERS & SOLICITORS Hearing Date/s: 05/05/2026 File No/s: CIV-26-000348 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. POLICE ASSOCIATION OF SOUTH AUSTRALIA & ORS v STRANGE [2026] SASCA 56 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice B Doyle) 21 May 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - PRELIMINARY DISCOVERY PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO PREVENT ABUSE OF PROCESS The respondent (‘Ms Strange’) filed an originating application in the District Court of South Australia seeking pre-action discovery from each of the appellants (‘PASA’, Ms Zimmermann and Mr Carroll) pursuant to rules 242.1 and 242.2 of the Uniform Civil Rules 2020 (SA) (‘UCRs’). The primary judge made orders granting that application and requiring the appellants to make discovery of identified categories of documents. A few weeks earlier, Ms Strange had commenced substantive proceedings against PASA and Mr Carroll in the Supreme Court of South Australia (‘Supreme Court proceedings’). Those proceedings were not served and their existence was not disclosed to the appellants or the primary judge. The appellants’ appeal against the pre-action discovery orders was heard and, save in respect of one category of documents, dismissed, again without the fact of the Supreme Court proceedings having been disclosed to the appellants. In the meantime, an order had been obtained (on an ex parte basis) -- 1 of 19 -- in the Supreme Court proceedings extending time for their service. The Supreme Court proceedings remain un-served. The appellants seek an extension of time and leave to appeal against the dismissal of the appeal against the pre-action discovery orders. Held, granting leave to appeal and an extension of time, and allowing the appeal: 1. on the proper construction of UCRs rr 242.1 and 242.2, the power to order pre-action discovery ceased to be available once substantive proceedings were instituted; 2. on the proper construction of UCRs rr 242.1 and 242.2, it is a requirement that the person seeking the orders is contemplating bringing a proceeding in the Court in which pre-action discovery is sought; 3. the pre-action discovery orders should be set aside and it is not appropriate to permit the respondent a right to elect whether to discontinue the Supreme Court proceedings before doing so; 4. the respondent’s oral application for discovery orders in the Supreme Court proceedings should not be entertained. District Court Act 1991 (SA) ss 24(1)(b), 24(2), 43(2), 43(3), 51; District Court Civil Rules 2006 (SA) rr 32, 33, 39(1); Federal Court Rules 2011 (Cth) r 7.23(1)(b); Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) s 5; Legislation Interpretation Act 2021 (SA) ss 14(1), 15(2); Limitation of Actions Act 1936 (SA) ss 37, 38, 48(1), 48(3)(b)(i); Rules of the Supreme Court 1971 (WA) O 26, r 4(4); Supreme Court Act 1935 (SA) s 72; Supreme Court Civil Rules 2006 (SA) rr 32, 33, 39(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 32.05; Supreme Court Rules 1987 (SA) r 60.01; Uniform Civil Procedure Rules 2005 (NSW) r 5.3(1); Uniform Civil Rules 2020 (SA) rr 1.5, 1.6(1), 2.1(1), 2.3(1)(a), 12.1(2)(c), 12.2(1), 12.2(2), 23.2, 24.2, 42.7(2), 44.1(6), 61.1(a), 61.6(1), 61.7, 61.8, 61.9, 61.10, 61.13(1), 61.13(2), 61.13(3), 62.1(1), 63.3(2), 64.1, 64.5, 65.2, 65.3, 65.4, 67.2, 67.3, 70.3, 72.1(2), 73.14, 82.2, 82.3(2), 85.1, 112.12(3), 113.2, 143.1, 143.2, 144.2, 146.1, 213.1(1)(a), 214.1(3), 242.1, 242.2, 243.1(1), referred to. Belcar Pty Ltd v Premier Automotive Group Australia Pty Ltd [2007] SASC 240; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Brydon v Australian Rail Track Corporation Ltd [2014] NSWSC 1560; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Clone Pty Ltd v Players Pty Ltd [2012] SASC 12; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; Karbowiak v Mitolo [2025] SASC 25; Lifeplan Australia Friendly Society Pty Ltd v Ancient Order of Foresters in Victoria Friendly Society Ltd (2013) 115 SASR 223; McFarlane as Trustee for the S McFarlane Superannuation Fund v IOOF Holdings Limited [2018] FCA 692; Nazdall Pty Ltd v Hermann (2013) 210 FCR 264; Nine Network Australia Pty Ltd v Ajaka (2022) 403 ALR 106; [2022] NSWCA 91; Police Association of South Australia v Strange [2025] SADC 31; Price v Spoor (2021) 270 CLR 450; Rigney v Rigney (1987) 48 SASR 291; Strange v Police Association of South Australia Decision of Auxiliary Master Roder, District Court of South Australia, 7 June 2024; Survival & Industrial Equipment (Newcastle) Pty Ltd v Owners of the Vessel ‘Alley Cat’ (1992) 36 FCR 129; The New South Wales Solicitors Mutual Indemnity Fund v The Hancock Family Memorial Foundation Ltd (No 2) [2009] WASCA 146; The State Bank of South Australia v Hellaby (1992) 59 SASR 304; Vestas – Australian Wind Technology Pty Ltd v Lal Lal Wind Farm Nom Co Pty Ltd [2020] VSC 554; Yufeng Investment Group (Australia) Pty Ltd v Guo [2026] NSWCA 3, discussed. -- 2 of 19 -- POLICE ASSOCIATION OF SOUTH AUSTRALIA & ORS v STRANGE [2026] SASCA 56 Court of Appeal—Civil: S Doyle, Bleby and B Doyle JJA 1 THE COURT: On 29 September 2023, the respondent (‘Ms Strange’) filed an originating application in the District Court of South Australia seeking pre-action discovery from each of the appellants (‘PASA’, Ms Zimmermann and Mr Carroll) pursuant to rules 242.1 and 242.2 of the Uniform Civil Rules 2020 (SA) (‘UCRs’). 2 On 7 June 2024, the primary judge made orders granting that application and requiring the appellants to make discovery of identified categories of documents.1 A few weeks earlier, Ms Strange had commenced substantive proceedings against PASA and Mr Carroll in the Supreme Court of South Australia (‘Supreme Court proceedings’). Those proceedings were not served and their existence was not disclosed to the appellants or the primary judge. 3 The appellants’ appeal against the pre-action discovery orders was heard and, save in respect of one category of documents, dismissed, again without the fact of the Supreme Court proceedings having been disclosed to the appellants.2 In the meantime, an order had been obtained (on an ex parte basis) in the Supreme Court proceedings extending time for their service. Those proceedings remain un- served. 4 The appellants now seek an extension of time and leave to appeal against the dismissal of the appeal against the pre-action discovery orders.3 5 The appellants acted promptly once they became aware of the facts which are the basis for their grounds of appeal. The extension would cause no substantial prejudice to Ms Strange. The extension of time should therefore be granted. 6 Leave to appeal should be granted because the appeal raises important questions about the scope of pre-action discovery under the UCRs. Further, because it is conceded that the existence of the Supreme Court proceedings should have been disclosed, the appeal does not entail re-visiting the merits of an interlocutory application for a third time. It raises issues of substance that have not yet been ventilated in the proceedings. In these circumstances, considerations of finality that might otherwise tend against a grant of leave recede in importance. 1 Strange v Police Association of South Australia, Decision of Auxiliary Master Roder, District Court of South Australia, 7 June 2024 (‘primary judgment’). 2 Police Association of South Australia v Strange [2025] SADC 31 (Judge Dart) (‘appeal judgment’). 3 District Court Act 1991 (SA), ss 43(2) and 43(3), UCRs rr 12.1(2)(c), 213.1(1)(a) and 214.1(3). -- 3 of 19 -- [2026] SASCA 56 The Court 2 7 The questions that are raised by the appeal are whether: (1) on the proper construction of UCRs rr 242.1 and 242.2, the power to order pre-action discovery ceased to be available once substantive proceedings were instituted; (2) the continued prosecution of the pre-action discovery proceedings in the District Court was an abuse of process once a decision had been made to pursue substantive proceedings in a different court, namely, the Supreme Court; (3) by virtue of the non-disclosure of the Supreme Court proceedings to the appellants and the primary judge (and, later, the appeal judge), the primary and appeal judgments are vitiated such that the appeal should be allowed and the pre-action discovery application either dismissed or remitted. 8 The first question should be answered ‘yes’. Whilst it is not necessary to decide whether there was an abuse of process, the essential proposition that underlies the second question should also be answered in the appellants’ favour. The result is that the pre-action discovery orders should be set aside. The third question should be answered ‘yes’, because the pre-action discovery orders were made upon a misapprehension that arose from a material non-disclosure.4 It is not necessary to decide what would have followed from that conclusion if the first and second questions had not yielded dispositive answers. 9 During oral submissions an additional issue was raised by Ms Strange. She submitted that, in the event that the pre-action discovery orders are liable to be set aside, the Court should make discovery orders in the Supreme Court proceedings in terms reflecting the pre-action discovery orders upheld by the appeal judge. This submission should be rejected. The Supreme Court proceedings remain un- served and are not before this Court, which exercises an appellate function. Pre-action discovery 10 The relevant rules are found in Part 12 (‘Pre-action discovery—Supreme and District Court’) of Chapter 19 (‘Specific kinds of proceedings’) of the UCRs. They provide: 242.1—Institution (1) A person who seeks discovery or production of evidentiary material or information to decide whether or against whom to bring or formulate a proceeding may institute an action under this rule by filing an Originating Application and supporting affidavit in accordance with rule 82.1. (2) The supporting affidavit must identify— 4 Primary judgment [14], [101]; appeal judgment [32]. -- 4 of 19 -- [2026] SASCA 56 The Court 3 (a) the person against whom the applicant is contemplating bringing a claim and the cause of action contemplated; (b) the evidentiary material or information sought; and (c) why the applicant requires the evidentiary material or information to determine whether a cause of action exists or against whom the claim lies or to formulate the claim properly. 242.2—Order (1) The Court may make an order under subrule (2) if satisfied that— (a) the applicant may have a good cause of action against another person; (b) the person against whom the order is sought may be in possession or custody of, or have power over, evidentiary material or information relevant to the possible cause of action; and (c) the applicant requires discovery or production of relevant evidentiary material or information to— (i) decide whether a cause of action exists; (ii) decide against whom the claim lies; or (iii) formulate the claim properly. (2) If the Court is satisfied under subrule (1), the Court may— (a) order that the respondent file and serve on the applicant a document disclosing whether the respondent is or has been in possession or custody of, or has or had power over, evidentiary material relevant to the possible cause of action and, if so, providing full particulars of such evidentiary material; (b) order that the respondent produce any evidentiary material relevant to the possible cause of action to the Court or for inspection or copying by the applicant; (c) order that the respondent make discovery as if the respondent were a party to a substantive action for the possible cause of action and for that purpose specify any matters or make any order that could be specified or made in respect of a party under Chapter 7 Part 13; (d) order that the respondent verify discovery or production by affidavit; (e) order that the respondent provide specified information to the Court; (f) order that the respondent attend before the Court for examination; or (g) make any other or further order as it thinks fit, including as to costs. (3) If the Court makes an order under subrule (2), the Court may subsequently make a further order under subrule (2). -- 5 of 19 -- [2026] SASCA 56 The Court 4 Example— If the Court orders that the respondent make discovery, after the respondent has done so the Court may order that the respondent attend before the Court for examination. 242.3—Compensation (1) Unless the Court otherwise orders, the respondent is entitled to payment by the applicant of reasonable compensation for the time and expense involved in complying with an order made under rule 242.2. (2) The compensation is to be fixed by agreement or in default of agreement by the Court. Interpretation of the UCRs 11 The UCRs are made pursuant to legislation respecting the courts in which they apply.5 They comprise a ‘legislative instrument’ within the meaning of the Legislation Interpretation Act 2021 (SA). The rules are to be interpreted as operating to the full extent of, but no so as to exceed, the enabling power.6 12 In resolving the rival contentions about the scope and limits of the power to order pre-action discovery under these rules, familiar principles of interpretation apply. They invite consideration of the text, context and purpose of the rules in question.7 13 Context is used here in its widest sense, so as to include the existing state of the law and the mischief that the provisions are intended to remedy, and requires consideration in the first instance and not merely at some later stage if an ambiguity is thought to arise.8 The predecessor provisions 14 The predecessor provision in the Supreme Court Civil Rules 2006 (SA) and the District Court Civil Rules 2006 (SA) (together, the ‘2006 Rules’) was r 32, located in Division 1 (‘Investigation’) of Part 2 (‘Proceedings in anticipation of action’) of Chapter 3 (‘Elements of action at first instance’). It provided: (1) If the Court is satisfied, on application by any person (the plaintiff) that the plaintiff may have a good cause of action and requires further information— 5 See, eg, District Court Act, s 51 and Supreme Court Act 1935 (SA), s 72. As to the Supreme Court’s inherent power to make rules see, eg, Rigney v Rigney (1987) 48 SASR 291. 6 Legislation Interpretation Act 2021 (SA), s 15(2). Generally speaking, rules of court cannot confer jurisdiction on the court but instead regulate the exercise of jurisdiction which it has from other sources: Clone Pty Ltd v Players Pty Ltd [2012] SASC 12 at [75] (Kourakis J). 7 See, eg, Yufeng Investment Group (Australia) Pty Ltd v Guo [2026] NSWCA 3 at [29] (Kirk JA, Bell CJ and Adamson JA agreeing), Nazdall Pty Ltd v Hermann (2013) 210 FCR 264 at [27] (Reeves J), Karbowiak v Mitolo [2025] SASC 25 at [16] (Stanley J). As to purpose, the interpretation that best achieves the purpose or object of the rules (whether or not that purpose is expressly stated in them) is to be preferred to any other interpretation: Legislation Interpretation Act, s 14(1). 8 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). -- 6 of 19 -- [2026] SASCA 56 The Court 5 (a) to determine whether a cause of action exists; or (b) to formulate the claim properly; or (c) to determine against whom the claim lies, the Court may exercise the investigative powers conferred by this rule in anticipation of an action. (2) The Court may, if satisfied that a person may be in possession of evidentiary material relevant to the possible cause of action, make an order imposing one or more of the following requirements— (a) to disclose to the Court or to the plaintiff whether the person is or has been in possession of relevant evidentiary material and, if so, to disclose full particulars of relevant evidentiary material that is, or has been, in the person's possession; (b) if the person is in possession of relevant evidentiary material, to produce it to the Court or to the plaintiff; (c) to verify the person's response to the order by affidavit. (3) After considering a person's response (or failure to respond) to an order under subrule (2), the Court may require the person to appear before the Court for cross- examination. (4) Subject to any direction by the Court to the contrary, a person against whom an order is made under this rule is entitled to reasonable compensation from the plaintiff for the time and expense involved in complying with the order. (5) The compensation is to be fixed by agreement between the plaintiff and the person entitled to the compensation or, in default of agreement, by the Court. 15 Ms Strange accepts that r 32 of the 2006 Rules did not extend to authorise an order for pre-action discovery where a substantive proceeding had been commenced, whether or not served. In view of the qualifying words ‘in anticipation of an action’, that concession is correctly made. Justice White’s reasons in Lifeplan Australia Friendly Society Pty Ltd v Ancient Order of Foresters in Victoria Friendly Society9 (‘Lifeplan’) appear to proceed on that premise. 16 Before that rule came into effect, r 60.01 of the Supreme Court Rules 1987 (SA) (‘1987 Rules’) authorised the Court to make an order for disclosure and production of documents by any person seeking such an order against another person ‘where both are likely to be parties to subsequent proceedings’. It also authorised the making of an order on application of a party to proceedings against a person ‘who is not a party’. It was held, in the context of a decision upholding the validity of that rule, that the ‘proceedings’ contemplated by the rule were proceedings in the Supreme Court.10 It was clear from the text of r 60.01 of the 9 (2013) 115 SASR 223 at [11], [16], [18], [32], [46]. 10 The State Bank of South Australia v Hellaby (1992) 59 SASR 304 at 306 (King CJ, Bollen J agreeing). -- 7 of 19 -- [2026] SASCA 56 The Court 6 1987 Rules that it did not authorise an order for disclosure or production against a party to a proceeding. 17 Ms Strange emphasises that the drafting of rr 242.1 and 242.2 differs in various respects from r 32 of the 2006 Rules. In overview, she submits that: • the rules provide for pre-action discovery: (a) to assist a person to decide whether or against whom to bring a proceeding; and (b) to assist a person to properly formulate a claim or proceeding; • in the former case, a person who has instituted but not served a proceeding has not yet ‘brought’ a proceeding; and • in the latter case, a person who has brought a proceeding may still need (and obtain) pre-action discovery to properly formulate the claim or proceeding. 18 In Ms Strange’s submission, given the ‘beneficial’ nature of pre-action discovery, it should be understood as available in a circumstance where, by reason that a time limitation is approaching, it is desirable to file but not serve a ‘holding action’, even though the claim or proceeding may not be ‘properly formulated’, and even though the applicant may not have decided whether or against whom a claim exists. 19 Before considering arguments about the asserted purpose of the provisions, or their desirable reach, it is appropriate to focus upon the textual indications as to their scope and limits and some further matters of context. Text 20 There are three features of the text of Part 12 which, together, lend support to the proposition that the power to order discovery under that Part is not available once a substantive proceeding has been commenced. 21 First, as has been noted, the Part is headed ‘Pre-action discovery’. That heading forms part of the rules.11 The word ‘action’ is defined to mean ‘any one of a claim, cross claim or originating application’.12 An action plainly exists once a claim, cross claim or originating application is filed, whether or not it has been served. The label ‘Pre-action discovery’ therefore appears to contemplate that a claim, cross claim or originating application has not been filed. 22 Secondly, although rr 242.1(1), 242.1(2)(c) and 242.2(1)(c)(iii) suggest that pre-action discovery may be sought to (properly) formulate a proceeding (or the claim the subject of it), and therefore even where the applicant has decided that a cause of action exists and against whom it lies, the requirement in r 242.1(2)(a) appears to apply in such a case. That provision requires the supporting affidavit to identify ‘the person against whom the applicant is contemplating bringing a 11 UCRs, r 2.3(1)(a). 12 UCRs, r 2.1(1). -- 8 of 19 -- [2026] SASCA 56 The Court 7 claim and the cause of action contemplated’. In turn, this suggests that the power does not exist to formulate a proceeding or claim where the bringing of a claim is no longer contemplated, because it has already occurred.13 23 Thirdly, one of the orders that can be made where the Court exercises its discretion to order pre-action discovery is an order that the respondent make discovery ‘as if the respondent were a party to a substantive action for the possible cause of action’.14 The premise for that provision is that the respondent is not a party to a substantive action. 24 Ms Strange makes several submissions by way of answer to these textual arguments. They include that: (1) at least where the basis for pre-action discovery is that the applicant requires the documents to properly formulate a claim or proceeding, r 242.1(2) does not pre-suppose that the applicant is still contemplating whether and against whom to bring a proceeding; (2) in any event, whatever might be predicated by r 242.1, that rule concerns a state of affairs in existence when the application for pre-action discovery is ‘instituted’, but does not supply an essential predicate for the subsequent making of orders on the application; (3) in determining the requirements for the making of orders, primacy should be given to the criteria in r 242.2(1), which are capable of satisfaction even though a substantive action may have been commenced but not filed; (4) rule 242.2(2)(c) is simply a convenient means of expressing a form of order that may be made; and (5) even if the provisions, read as a whole, require that the bringing of an action, claim or proceeding remains in contemplation when orders are made, ‘bring’ means file and serve, rather than simply commence by filing. 25 In our view, the second and third contentions should be rejected. The provisions should be read harmoniously. It is difficult to see any reason why requirements applying at the time of the institution of a pre-action discovery application would not remain applicable during the continued prosecution until the disposition of the application. 26 As to the first contention, whilst, conceivably, r 242.1(2)(a) might be understood as designed merely to ensure that the Court has sufficient information to understand the application, with the result that it serves no purpose where that information is available from the proceeding that has been brought, that 13 The question whether the mere institution of an action involves ‘bringing’ the action is a separate question addressed below. 14 UCRs, r 242.2(2)(c). -- 9 of 19 -- [2026] SASCA 56 The Court 8 construction pre-supposes both that the Court will be provided with the substantive proceedings (which it was not here) and that there will have been a substantive proceeding brought that was not able properly to be formulated. The latter pre- supposition also underlies the third and fifth contentions. There is, however, a tension between that pre-supposition and the requirements of rr 67.2 and 67.3 (in the case of claims) or r 82.2 (in the case of an originating application).15 The broad effect of those rules is to require that the initiating documents required to constitute an action are properly formulated. Those rules do not apply only once a proceeding has been served. Whilst, conceivably, an applicant might seek dispensation from those requirements if the interests of justice require it, the ordinary assumption of the rules is that a proceeding or action will have been properly formulated. 27 With respect to the fourth contention, whilst, standing alone, r 242.2(2)(c) might be understood in the more limited way contended for, when considered in the context of the other textual indicators, that provision is more consistent with the predicate contended for by the appellants, namely, that a pre-action discovery order is available only when a substantive action has not been commenced. 28 Focusing upon the fifth contention, Ms Strange contends that even if an action for pre-action discovery which is pursued to enable a proceeding or claim to be properly formulated can only succeed where the bringing of a claim remains in contemplation, the words ‘bring’ and ‘bringing’ in rr 242.1(1) and (2)(a) respectively mean the filing and service of the proceeding or claim, as distinct from the mere institution of the proceeding or claim. 29 In making that submission, the respondent emphasises the differential use within r 242.1(1) of the word ‘institute’ (in respect of the pre-action discovery application) and ‘bring’ (in respect of the contemplated substantive proceeding). The respondent submits that there are instances in the UCRs where ‘bring’ connotes providing a document to the other party or actually notifying the other party of a fact.16 It is not apparent, however, that ‘bring’ connotes service (or actual notice) in each of the examples given and, in any event, there are several examples in the UCRs where the verb ‘bring’ is plainly used to connote the institution or commencement of a proceeding as distinct from its service.17 30 Further still, the word ‘brought’ is used in ss 37 and 38 of the Limitation of Actions Act 1936 (SA) interchangeably with the word ‘commenced’, which is used throughout that Act. And, more generally, the natural meaning of to bring a proceeding is to commence a proceeding. Of course, when juxtaposed with other words, a different sense may be conveyed by the verb ‘bring’, for instance, to ‘bring a person before the court’, or to ‘bring to a person’s attention’. But when used in connection with a claim or action, the word ‘bring’ usually (though not always) conveys the act of formally presenting that claim or action before a 15 cf. Brydon v Australian Rail Track Corporation Ltd [2014] NSWSC 1560 at [11] (Campbell J). 16 The respondent referred, inter alia, to UCRs, rr 65.2-65.4, 42.7(2), 44.1(6), 72.1(2), 112.12(3). 17 See, eg, UCRs, rr 23.2, 24.2, 61.1(a), (d), 61.6(1), 61.7, 61.8-10, 61.13(1)-(3), 62.1(1). -- 10 of 19 -- [2026] SASCA 56 The Court 9 relevant tribunal. The addition of the preposition ‘against’ does not dictate a different meaning given that almost all legal actions are against a person. 31 Ms Strange’s contention that ‘bring’ means ‘file and serve’ lacks support in the text of rr 242.1 and 242.2 or the other provisions of the UCRs. It remains, however, to consider any broader matters of context and purpose. Context 32 First, it may be noted that whilst the pre-action discovery rule no longer immediately precedes a provision relating to pre-action notice of a claim (r 33 of the 2006 Rules), the relevant provisions occupy a distinct Part within a Chapter that is separate from the rules that apply in respect of substantive actions. Part 12 of Chapter 19 now immediately precedes Part 13 which applies where a person seeks a search order or freezing order ‘in anticipation of instituting a substantive action’.18 33 Turning to the wider context, as has been mentioned, r 32 of the 2006 Rules did not contemplate an order for pre-action discovery being available where a substantive proceeding had been commenced. The appellant pointed to a number of decisions concerning similar (but not identical) provisions in the rules of other State or federal courts which also treat the power as limited in that way.19 34 As Ms Strange correctly submits, the text of the rules differs in each of these cases and so it cannot be suggested that those decisions directly govern the approach to be adopted to rr 242.1 and 242.2. They do, however, provide relevant context. 35 The context is that it has not been considered necessary or appropriate, either in the predecessor provisions applicable in this State, or in rules of court applicable elsewhere, to provide a facility for pre-action discovery that is available after the institution of substantive proceedings. 36 Against that background, and bearing in mind that the differences between the current and previous pre-action discovery rules were introduced as part of a wholesale re-drafting of the civil procedure rules, there is reason to doubt whether subtle differences in the text of the pre-action discovery rules were intended to broaden their basic scope. Indeed, as will be explained, some other aspects of the 18 UCRs, r 243.1(1). 19 In respect of r 5.3(1) of the Uniform Civil Procedure Rules 2005 (NSW), see Nine Network Australia Pty Ltd v Ajaka (2022) 403 ALR 106; [2022] NSWCA 91. In respect of r 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), see Vestas – Australian Wind Technology Pty Ltd v Lal Lal Wind Farm Nom Co Pty Ltd [2020] VSC 554. In respect of O 26, r 4(4) of the Rules of the Supreme Court 1971 (WA), see The New South Wales Solicitors Mutual Indemnity Fund v The Hancock Family Memorial Foundation Ltd (No 2) [2009] WASCA 146. In respect of r 7.23(1)(b) of the Federal Court Rules 2011 (Cth), see McFarlane as Trustee for the S McFarlane Superannuation Fund v IOOF Holdings Limited [2018] FCA 692. See also Survival & Industrial Equipment (Newcastle) Pty Ltd v Owners of the Vessel ‘Alley Cat’ (1992) 36 FCR 129. -- 11 of 19 -- [2026] SASCA 56 The Court 10 amendments to the civil procedure rules undermine the broader scope contended for in this case. Purpose 37 Rules 12.2(1) and (2) provide that in making orders, the Court may have regard to the object of the UCRs and may have regard, inter alia, to the efficient conduct of the business of the Court and the efficient use of judicial and administrative resources. It may also be accepted that, in the case of a constructional choice, the object of the UCRs may be influential. The object of the UCRs is to facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings governed by the UCRs.20 If and to the extent that the broader construction contended for by Ms Strange would advance that object then this may be a reason to favour such a construction, so long as it is otherwise consistent with the text and context of the provisions. 38 In this context, Ms Strange emphasises authorities that have referred to the ‘beneficial effect’ that pre-action discovery is designed to achieve.21 Broadly speaking, the benefit is that it facilitates an applicant investigating a claim without launching proceedings with all the consequences for the court and the parties that come with that. It may be accepted that, where pre-action discovery orders permit a claimant more precisely to formulate a claim that they do wish to pursue, that may be seen to advance the interests of justice. And, where the results of the investigation cause the putative claimant not to proceed with a claim, it might be said that the time and resources of both the putative respondent and the legal system, are spared. That said, if the putative claimant would not (without pre- action discovery) have a basis upon which to institute the proceedings, the end result may simply reflect the status quo ante. 39 But in either case, as White J recognised in respect of r 32 of the 2006 Rules in Lifeplan,22 it remains necessary: to keep in mind that an exercise of the powers under r 32 involves a coercive intrusion into the right, which the subjects of the order otherwise have, to keep their documents and information to themselves. This is especially so as r 32 would permit an order to be made against someone other than a prospective defendant, for example, a person who has information as to the identity of the persons responsible for the tortiously caused harm of which the plaintiff complains. 40 In his view, an understanding of the intrusive effect of an order for pre-action disclosure was important in construing and understanding the application of r 32 of the 2006 Rules.23 The same is true of rr 242.1 and 242.2. The intrusive effect 20 UCRs, r 1.5. 21 Lifeplan at [17], [30] (White J), Belcar Pty Ltd v Premier Automotive Group Australia Pty Ltd [2007] SASC 240 at [50] (Judge Burley). 22 (2013) 115 SASR 223 at [18]. 23 Lifeplan at [21]. -- 12 of 19 -- [2026] SASCA 56 The Court 11 will not always be limited to the discovery and production of documents. It may involve an examination on oath.24 41 Plainly, the provisions have the capacity to facilitate access to justice and to avoid the wastage of resources. But the provisions strike a balance because they impose a burden on the party bound to comply with the orders. Accordingly, orders should only be made if there is at least a material possibility that there is a ‘good cause of action’. And they should not be made if the documents are not ‘required’ for identified purposes. Questions of proportionality may bear on the exercise of discretion. When the provisions are applied sensibly, and with a sensitivity to the competing interests and considerations, their operation may fairly be described as ‘beneficial’. But that general characterisation provides limited interpretive assistance when considering the potential availability of pre-action discovery after a substantive proceeding has been commenced. It is necessary to consider the parties’ competing submissions about the merits or demerits of pre- action discovery in that particular circumstance. 42 Ms Strange drew attention to the dilemma in which she found herself when her application for pre-action discovery had been argued but not decided at a time when a possible limitation date was approaching. She submitted that had she abandoned the pre-action discovery application and pursued orders in the Supreme Court proceedings for discovery of a similar kind in aid of a decision about whether, and if so, how, to proceed with the formulation of any claims,25 she would have faced resistance to that course. She submitted that it was consistent with the overall justice of the situation to allow the pre-action discovery application to proceed (and succeed) notwithstanding that a ‘holding action’ had been filed. She submitted that that action had been filed to preserve the position with respect to limitation periods. It was not a concession that the pre-action discovery was no longer required for the reasons put to and accepted by the primary judge and the appeal judge. 43 Implicit in those submissions is that if rr 242.1 and 242.2 are not wide enough to accommodate that course, an injustice would be suffered. The rules should be construed so as to enhance access to justice and the interests of justice. 44 It is also implicit in the submissions that the concept of a ‘holding action’ is one either recognised or at least catered for by the UCRs. One difficulty with that proposition is that, unless the Court otherwise orders or the parties otherwise agree, an applicant is required, as soon as practicable, to serve a copy of the relevant ‘Claim documents’ or ‘Originating Application documents’ on each respondent.26 In this respect, the UCRs depart from the 2006 Rules, under which, within the six month period for service,27 there was no express obligation promptly to serve the proceedings. Whereas, in the past, a plaintiff or applicant who wished not to 24 UCRs, r 242.2(2)(f). 25 Relying, for instance, upon UCRs, r 73.14. 26 UCRs, rr 63.3(2) and 82.3(2). 27 2006 Rules, r 39(1). -- 13 of 19 -- [2026] SASCA 56 The Court 12 progress an action, such as where they were awaiting the stabilisation of injuries, might have applied for successive extensions of time within which to effect service, the scheme of the UCRs is that an applicant should file and serve their claim and then avail themselves of the moratorium provisions.28 45 Further, even accepting that, if and when the substantive action had been served, the appellants might successfully have opposed the making of early discovery orders in the Supreme Court proceedings, and may have moved to invoke the Court’s discretion to strike out or otherwise dismiss the proceedings,29 there were at least two alternative options available to the respondent (or a person in a similar position) which might have avoided any perceived injustice. 46 First, assuming she could not have commenced the pre-action discovery application earlier, she might have sought expedition on the basis of the approaching limitation period. Whilst that might not be effective in every case to facilitate the obtaining and review of documents before the expiry of a relevant limitation period, it would often be an effective course. 47 Secondly, she might have awaited the outcome of the pre-action discovery application on the basis that, if it were to succeed and reveal information that is material to an assessment of whether she has a cause of action, or against whom she has a cause of action, or is material to her capacity to properly formulate a cause of action, this may enliven a discretion to grant an extension of time within which to commence proceedings,30 or might otherwise warrant an extension of time on the basis that the justice of the case requires it.31 48 Allowing that these procedural options may not provide complete comfort to a party in the position of Ms Strange, it remains the case that the construction for which she contends is not without potential adverse consequences for other parties and, potentially, the public interest. To say that an un-served proceeding exposes the respondent to no burden or jeopardy may be simplistic. The existence of legal jeopardy may itself be a source of considerable stress, even before the wheels are relevantly in motion. Indeed, an action in suspense may cause heightened stress. There is a difference between the interests of justice and the legitimate interests of a putative claimant. The former concept embraces but is wider than the latter. 49 Ms Strange’s construction would facilitate an applicant obtaining pre-action discovery against someone who is already party to an un-served action which, by hypothesis, may be liable to be struck out or summarily dismissed if it were served, apparently with a view to ensuring that a limitation defence does not become available. That invites consideration of whether a procedure whose purpose or 28 UCRs, r 64.5. See also UCRs, r 64.1 note 1. 29 Relying, for instance, upon UCRs rr 70.3, 85.1, 143.1, 143.2, 144.2 or 146.1. 30 Limitation of Actions Act 1936 (SA), s 48(3)(b)(i). 31 Limitation of Actions Act, s 48(1). This ground is available for limitation periods imposed other than under the Act itself. -- 14 of 19 -- [2026] SASCA 56 The Court 13 effect is to circumvent the ordinary operation of limitation provisions is one which advances the administration of justice. 50 Limitation periods, and the permissible exceptions to them, are imposed by statute. They serve the interests of finality,32 are conducive to the orderly administration of justice and are in the public interest.33 Generally speaking, a putative defendant is entitled to know (or by inquiry discover), by the expiry of that period, whether they will be proceeded against. To countenance a practice of instituting a ‘holding action’ in respect of which no decision has been made whether to proceed, and to facilitate investigations that may assist in reaching a decision, might be thought to undermine that statutory objective. 51 The ‘beneficial effect’ contended for by Ms Strange in this case would see the appellants exposed to, but, by reason of non-service, unable effectively to confront, substantive proceedings, whilst at the same time being required to engage with pre-action discovery proceedings. 52 These observations are not intended to suggest that the consequences of the construction of the rules for which Ms Strange contends are so intolerable or undesirable that, for that reason alone, her construction must be disfavoured. They are intended to demonstrate the difficulty in resolving the issues of construction by reference to general assertions as to the desirable reach or asserted beneficial effect of pre-action discovery. A contention that it would be desirable for the power to extend to cases where proceedings have been commenced (in order to avoid a limitation issue) but not served is, at the very least, contestable. The preferable construction 53 In this case, the text and context provide the surest guide to the purpose and, in turn, the scope and meaning of the pre-action discovery rules. The purpose of those rules is simply to confer upon the Court a discretion to facilitate the making of orders where, despite their intrusive effect, they can be justified because they may assist an applicant who, by reason of a lack of information, is not able to decide whether or against whom, or how to properly formulate and bring, a contemplated proceeding. 54 Pre-action discovery regimes in this State and elsewhere have generally been understood as designed to facilitate decisions about, and the formulation of, legal proceedings and, for that reason, as inapplicable once proceedings have been instituted. The text of the current provisions contains indications which, whilst not unequivocal, tend to support the proposition that that remains the case. The suggestion that pre-action discovery is available to learn more about the facts of a claim that is the subject of a filed pleading that may not comply with the requirements of the UCRs and which, in apparent non-compliance with the 32 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551-553 (McHugh J). 33 Price v Spoor (2021) 270 CLR 450 at [15] (Kiefel CJ and Edelman J), at [41] (Gageler and Gordon JJ), at [83], [87] (Steward J). -- 15 of 19 -- [2026] SASCA 56 The Court 14 injunction to do so as soon as reasonably practicable, has not been served, is a problematic one. Ms Strange’s contentions as to the desirable reach of the provisions are not sufficiently persuasive to overcome the indications in the text and context that the rule is limited in the manner contended for by the appellants. The appellants’ construction leads to a more harmonious operation of the UCRs as a whole, and does not risk subverting statutorily imposed limitation periods. 55 Once Ms Strange had brought a proceeding, an order for pre-action discovery was no longer available or appropriate. Although the primary judge was not made aware of that circumstance, and no criticism can be made of primary judge or the appeal judge on this score, the pre-action discovery orders should be set aside. Abuse of process 56 The appellants’ second challenge to the pre-action discovery orders turns upon the circumstance that the substantive action was filed in the Supreme Court of South Australia. The appellants contend that it was an abuse of the processes of the District Court to press for pre-action disclosure in aid of a proceeding in a different court. 57 Consistently with the position under the 1987 Rules,34 in Lifeplan, White J held that the power in r 32 of the 2006 Rules was exercisable only in relation to anticipated proceedings in the Court in which the relevant rule was invoked.35 As he acknowledged, that does not preclude a party from later changing its mind if, for example, the discovery obtained suggests that the quantum of the claim makes it appropriate to proceed in a different jurisdiction.36 58 Ms Strange contends that the pre-action discovery rules in the UCRs are available in relation to a contemplated claim or proceeding that would be within the jurisdiction of the court from which the discovery is sought. That may be a useful guide to whether the discovery sought is appropriate, but if the party seeking the discovery is not in fact contemplating a proceeding in that court, then the order should not be made. That is because the expressions ‘action’, ‘proceeding’ and ‘claim’ in the UCRs should be understood as meaning an action, proceeding or claim in the court in which the pre-action discovery application is instituted.37 Speaking generally, it is not the function of the rules of one court to facilitate investigation of a claim in another court, particularly where that involves the compelled disclosure of documents.38 59 In the present case, by the time the pre-action discovery orders were made, Ms Strange cannot have been contemplating bringing a proceeding in the District Court, because a substantive proceeding had been brought in the Supreme Court. 34 The State Bank of South Australia v Hellaby (1992) 59 SASR 304 at 306 (King CJ, Bollen J agreeing). 35 Lifeplan at [46]. 36 Lifeplan at [47]. 37 The State Bank of South Australia v Hellaby (1992) 59 SASR 304 at 306 (King CJ, Bollen J agreeing). 38 The so-called ‘Harman undertaking’ limits the use of documents whose disclosure is required by rules or orders of a court to use in the proceeding in that court. -- 16 of 19 -- [2026] SASCA 56 The Court 15 Neither the facility to transfer actions between the two courts,39 the fact that the two courts share uniform procedural rules,40 nor the potential for a judicial officer of the Supreme Court to exercise the powers of a judicial officer of the District Court,41 denies their separate existence. 60 Whilst, on one view, the continued prosecution of the pre-action discovery application after the filing of the Supreme Court proceedings may be described as an ‘abuse of process’, the point of present significance is that the orders were made when it was no longer the case that the applicant was contemplating bringing a proceeding in the District Court, nor seeking discovery in order to properly formulate a proceeding in that court. For that additional reason, the orders should not have been made. Again, that conclusion does not imply any criticism of the decisions of the primary judge or the appeal judge. Non-disclosure 61 Ms Strange has accepted, on this appeal, that the fact that she had commenced the Supreme Court proceedings should have been disclosed to the appellants, the primary judge and the appeal judge. This was on the basis that this fact (and the terms in which the proceedings had been instituted) were ‘relevant … albeit not materially relevant’.42 Ms Strange accepts that the appellants should have been given the opportunity to address the significance of the ‘holding action’, but she contends that any submissions would have been ineffectual to change the outcome. 62 In view of the conclusion reached with respect to the construction of the UCRs, the submission that the disclosure would not have been material must be rejected. It is unnecessary to explore whether, had a different view of the construction of the UCRs been taken, the fact of the institution of the Supreme Court proceedings would have seen the discretion exercised differently. 63 The non-disclosure was deliberate, in that it was not by oversight or inadvertence. There is, however, no reason to doubt that it reflected an honestly held view that Ms Strange was entitled to proceed in that way. Alternative basis for orders 64 There are several reasons why it is not appropriate to accede to Ms Strange’s submission to make discovery orders in the Supreme Court proceedings. 65 First, the Supreme Court proceedings, whilst relevant to the issues on this appeal, are not before the Court. Even assuming the existence of a procedural mechanism to bring a discovery application before the Court of Appeal, no such application was properly made. 39 District Court Act, ss 24(1)(b) and 24(2), UCRs, r 113.2. 40 UCRs, r 1.6(1). 41 Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA), s 5. 42 Respondent’s written submissions [45.2]. -- 17 of 19 -- [2026] SASCA 56 The Court 16 66 Secondly, and more fundamentally, those proceedings remain un-served. 67 Thirdly, those issues aside, and recognising that the appellants are in fact aware of the Supreme Court proceedings and familiar with the documents that have been filed, fairness would require that they be given an opportunity to consider the grounds upon which they would oppose a discovery order in those proceedings. 68 It has not been necessary to traverse the factual background relevant to the claims Ms Strange wishes to investigate or formulate against the appellants. The appellants’ grounds of appeal did not require a consideration of those matters. However, there was considerable debate before the primary judge and the appeal judge as to whether, quite apart from the issue ventilated on appeal, pre-action discovery was appropriate. It might be that, had the appellants been notified of Ms Strange’s proposal to seek discovery in the Supreme Court, they would have wished to re-agitate some of those issues. 69 Finally, it would be an inefficient use of judicial resources for this Court to hear and resolve a discovery application, particularly where the issues may not precisely overlap with the issues ventilated on the appeal. Application for leave to make further submissions 70 After judgment was reserved, Ms Strange sought permission to advance a further ‘supplementary submission’ in these terms: 1. If the Court is against her on the construction of Rule 242, or is with her on the construction, but would be minded, in exercising the discretion under UCR 242, to decline to make the orders sought by the respondent because she had commenced the holding action, then it would be open to the Court (and the Court should), before disposing of the appeal on one or other of those bases, put the respondent to her election between, on the one hand, maintaining the pre-action discovery orders and discontinuing the holding action, or, on the other hand, accepting the setting aside of those orders and pursuing her holding action. 2. The respondent hereby foreshadowing that, if put to her election, she would elect to discontinue the holding action and retain the UCR 242 orders, in those circumstances, the Court should grant the appellants an extension of time to appeal, grant leave to appeal, note the respondent’s election, and order that upon discontinuance of the holding action, the appeal be dismissed, with costs to be reserved for further consideration after submissions and liberty to apply. 71 There are substantial difficulties with the course proposed by Ms Strange. They include that: (1) on the facts (as established by evidence tendered without objection on the appeal) as they existed at the time the primary judgment and the appeal judgment were given, Ms Strange was not entitled to an order for pre-action discovery; (2) whilst, on one view, this Court may reconsider the appropriateness of an order for pre-action discovery by reference to facts as they now stand, those -- 18 of 19 -- [2026] SASCA 56 The Court 17 facts have not in fact changed. Ms Strange has merely foreshadowed how she would exercise an ‘election’, if given that opportunity by the Court; (3) strictly speaking, even had that ‘election’ been made, and the Supreme Court proceeding been discontinued, proof of this fact would entail reliance upon fresh evidence on appeal as well as a departure from the way in which the proceedings were (at least, implicitly) conducted before the primary judge and the appeal judge; (4) however characterised, Ms Strange’s proposed approach involves seeking a discretionary indulgence from the Court – first, to permit new submissions to be advanced after the conclusion of the oral hearing, and secondly, to depart from the previous conduct of the proceedings in the manner proposed; and (5) if Ms Strange were to be permitted to proceed in this way, it would be necessary to consider a number of further matters that have not yet been the subject of argument. Even assuming the discontinuance of the Supreme Court proceedings, there may nevertheless be an argument that the earlier act of filing those proceedings constitutes an admission that Ms Strange had decided to sue the appellants or was able to properly formulate her claim. The appellants may also wish to make submissions as to the appropriate re- exercise of discretion in the circumstances now presented. 72 In considering whether there are exceptional circumstances of the kind which would justify granting permission to raise new submissions after the conclusion of oral argument,43 it is also relevant to bear in mind that there is no reason (or at least none given as to) why the proposed supplementary submissions were not made prior to, or at the hearing of, the appeal. As well, whilst this is not a decisive consideration, by reason of the earlier material non-disclosure, Ms Strange is not a strong candidate for a discretionary indulgence. 73 More fundamentally, in our view, the issue is not one of ‘election’. It is not that the order cannot fairly be enforced or relied upon whilst substantive proceedings are on foot; it is that the order should not have been made. The orders we make on this appeal may not preclude a fresh application being made in different circumstances, but it is not appropriate in the procedural context of this appeal to entertain the approach belatedly proposed by Ms Strange. Disposition 74 The appeal should be allowed. The orders made by the appeal judge should be set aside and, in their place, an order entered that the appeal be allowed, and the orders for pre-action discovery made by the primary judge set aside. The parties should be heard further as to costs. 43 cf. Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [29]-[30] (McHugh J), Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 258 (Mason J). -- 19 of 19 --