Background
Ann-Maree Antakley, acting without legal representation, sought preliminary discovery under rr 5.2 and 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) against 37 respondents. She requested extensive information concerning matters including social-media accounts, IP addresses, location data and a WhatsApp group chat, alleging that a wide-ranging conspiracy had prevented her from identifying prospective defendants and assessing possible claims.
Her supporting material included a 2,076-page affidavit and 1,145 annexures occupying 193 folders. The Court found the allegations serious but confusing and the originating documents largely incomprehensible. Ms Antakley also applied to be referred for pro bono legal assistance under r 7.36.
The Court’s Holding
Sirtes J held that a pro bono referral was in the interests of the administration of justice. Although the proceeding did not have obvious merit, its potential complexity, Ms Antakley’s acknowledged lack of legal knowledge and her willingness to accept assistance meant that a lawyer might identify a viable claim or help her understand why further litigation would be futile. The referral itself expressed no view on the merits.
The Court struck out the summons and dismissed the notice of motion. Ms Antakley’s asserted confidence that she already had claims against numerous identified persons was inconsistent with preliminary discovery to identify prospective defendants under r 5.2 or to decide whether to commence proceedings under r 5.3. The documents were also prolix and largely incomprehensible, while jurisdiction, party-identification and service problems affected some proposed claims. Nevertheless, the Court allowed her to file an amended summons and supporting affidavit by 10 December 2026 after obtaining legal advice, reserved costs and listed the matter for further directions.
Key Takeaways
- A pro bono referral may be appropriate even where merit is uncertain if legal advice could reveal a viable claim or prevent unnecessary litigation.
- Preliminary discovery is not available for its intended threshold purposes where an applicant has already identified proposed defendants and decided to sue them.
- Courts may strike out incomprehensible or procedurally defective filings while granting leave to replead, particularly where legal assistance may clarify the case.
Why It Matters
The ruling illustrates the careful balance courts must strike when dealing with complex claims brought by self-represented litigants. Pro bono assistance is a scarce resource, but referral can promote justice where professional advice may either uncover legal merit or bring futile litigation to an end.
It also underscores that preliminary discovery is a limited pre-action procedure, not a means of obtaining broad evidence after a litigant has already resolved to bring claims against identified parties.