Sometimes you know you’ve been wronged but you can’t responsibly start proceedings because the crucial documents are in the other side’s hands.
Queensland now has a practical pathway to obtain specific documents before you commence a claim: “preliminary disclosure” under rule 208D of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). This can reduce guesswork, tighten pleadings, and help you decide whether litigation is commercially worthwhile.
A recent Supreme Court decision, Fairman v Jonelca Holdings Pty Ltd [2025] QSC 40, provides timely guidance on how r 208D is applied in Queensland and what evidence you need to succeed.
What is pre-action disclosure (preliminary disclosure) in Queensland?
In Queensland, the pre-action disclosure regime is called “preliminary disclosure” and sits in UCPR Part 1, Division 3A (rr 208B–208D).
Unlike standard disclosure (which typically occurs after pleadings close), r 208D allows the Court to order a prospective defendant to disclose or produce documents before proceedings are started where the applicant can’t sensibly sue without them.
It’s not designed to be a fishing expedition. It’s designed to be a targeted, evidence-driven mechanism to obtain documents necessary to make an informed decision about commencing proceedings.
The 5 requirements under UCPR r 208D
The Court may make an order if it appears that:
- You may have a right to relief against a prospective defendant; and
- It’s impracticable to start the proceeding without reference to a document; and
- There is an objective likelihood the prospective defendant has (or is likely to have) the document; and
- Inspection of the document would assist your decision whether to start proceedings; and
- The interests of justice require the order.
In practice, your affidavit evidence must do real work: explain the suspected claim, identify the documents with as much precision as possible, and show why the documents matter to the decision to sue.
Key guidance from Fairman v Jonelca [2025] QSC 40
Background (why the buyers needed documents first)
In Fairman, multiple applicants had entered “off the plan” apartment contracts. A sunset date was approaching, and the developer intended to terminate. The applicants suspected delays were deliberate (or at least unreasonable), but they needed access to confidential project and finance documents to decide whether to sue and what relief to seek.
They had tried to obtain documents voluntarily but were met with limited cooperation and confidentiality restrictions.
What the Court said about “may have a right to relief”
The Court emphasised that applicants do not have to prove every element of a cause of action at this stage. However, you must provide enough facts to show reasonable cause to believe you may have an entitlement to relief and provide some particularisation of the relief in contemplation (for example, injunctions, specific performance, damages, declarations—depending on the case).
“Impracticable” does not mean “impossible”
A critical takeaway: “impracticable” is not “impossible”. The Court treated “impracticable” as involving disproportionate time and cost, and the risk of commencing proceedings based on assumptions that might later prove wrong—an approach consistent with the overarching purpose of the UCPR (efficient resolution at minimum expense).
Interests of justice: “cards on the table” (balanced)
The “interests of justice” factor is a balancing exercise. The Court recognised the modern litigation approach of cards on the table, but cautioned against fishing expeditions and noted legitimate concerns such as commercial confidentiality and privacy.
In Fairman, urgency (the imminent sunset date) and the lack of a realistic alternative way to obtain the documents weighed in favour of ordering disclosure.
Confidentiality is common—and manageable
Pre-action disclosure applications frequently involve commercially sensitive documents. Orders may include confidentiality mechanisms (for example, solicitor-only access, redactions, liberty to apply regarding deletions, and controlled inspection arrangements). The Court in Fairman also built in a practical safety valve: liberty to apply for redactions or deletions on short notice.
When should you consider a r 208D application?
r 208D can be strategically useful where:
- You have a credible claim in contemplation, but the key proof sits with the other party;
- There is a live decision to be made: sue / don’t sue / who to sue / what relief to seek;
- A looming deadline increases risk (for example, limitation periods, contractual termination dates, or urgent injunctive decisions);
- The other party refuses voluntary production or offers only selective “marketing” disclosure;
- You can identify categories of documents with specificity (not merely “all documents relating to…”).
Common commercial dispute examples include:
- Director / shareholder disputes (board minutes, related-party transaction records, bank statements, management accounts, cap table and valuation materials)
- Breach of contract / misleading conduct (key emails, variation documents, pricing schedules, tender submissions)
- Restraint of trade / confidential information (communications evidencing solicitation, data exports, client approach plans)
- Construction / property disputes (programs, QS reports, variations, superintendent instructions, funding correspondence)
What evidence do you need to put on?
A strong r 208D affidavit typically covers:
- The dispute narrative (concise, chronological, commercial context)
- The suspected causes of action / relief (what you may sue for and why)
- The document categories (clearly defined, with examples and date ranges)
- Why it’s impracticable to sue without them (cost, risk, inability to plead properly, inability to identify the right defendant, urgency)
- Why the respondent likely has them (roles, systems, prior references, admissions, common business practice)
- Why inspection will assist the decision (how each category informs liability, defences, causation, quantum, or relief)
- Confidentiality proposals (practical safeguards to reduce commercial prejudice)
Risks, limits and cost consequences
Pre-action disclosure can be powerful, but it is not automatic.
Key risks include:
- Overreach: broad categories can look like a fishing expedition.
- Confidentiality disputes: the other side may resist, seek redactions, or impose solicitor-only inspection conditions.
- Costs: if you fail, you may face an adverse costs order. If you succeed, costs orders can still be nuanced depending on conduct and the compliance burden.
A careful, targeted approach usually wins: ask for what you truly need to make the “commence or not” decision—not everything you’d like for the eventual fight.
Practical tip: start with a “pre-action protocol” letter
Before filing, consider a tightly drafted letter that:
- identifies the contemplated claim and relief;
- lists specific document categories and why they matter;
- proposes confidentiality terms; and
- foreshadows an application under UCPR r 208D if not provided by a short deadline.
This often flushes out documents (or at least admissions) and strengthens your “interests of justice” case if the respondent refuses.
How Boss Lawyers can help
Boss Lawyers acts for applicants and respondents in Queensland commercial litigation where early document access is decisive. We can:
- assess whether r 208D is realistically available on your facts;
- draft the evidence and originating application;
- shape document categories to avoid “fishing” problems;
- propose confidentiality regimes that courts accept; and
- pursue (or resist) costs outcomes strategically.
If you need documents before you sue, we can help you decide the quickest and most commercially sensible route.
FAQ
Can I force someone to give me documents before I sue in Queensland?
Sometimes. The Supreme Court can order preliminary disclosure under UCPR r 208D if you satisfy the rule’s requirements, including impracticability of commencing proceedings without the documents and that the interests of justice require it.
Do I need to prove my whole case first?
No. You must show you may have a right to relief and provide enough factual material to demonstrate reasonable cause to believe you may have a viable claim and identify the nature of relief contemplated.
What does “impracticable” mean under r 208D?
It does not mean “impossible.” It can include circumstances where commencing without the documents would involve disproportionate time/cost, or force you to plead based on assumptions that could later prove wrong.
Will the Court protect confidential business documents?
Often, yes. Orders may include confidentiality terms, solicitor-only access, redactions, and liberty to apply for deletions or redactions.
Where is this used most in commercial disputes?
Commonly in shareholder/director disputes, restraint/confidential information matters, major contract disputes, and construction/property disputes where the documentary trail is controlled by the other side.
Short legal disclaimer (for the bottom of the blog)
This article is general information only and not legal advice. It does not take into account your objectives, circumstances or needs. You should obtain legal advice about your specific situation.
