Case: Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1
Outcome: applied
submissions in support of the discovery order which it claims were developed in detail as follows: (a) The correct principles to be applied in the present application are: (i) First, the applicant must show that, after having made reasonable inquiries, it is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding against that person. (ii) Second, the applicant must show that 'some person' has or is likely to have knowledge of facts, or the possession of documents, tending to assist in identifying the prospective respondent. (iii) Third, the applicant is not required to demonstrate the existence of a prima facie case against the prospective respondent. However, relief of this kind is nevertheless unavailable to a person who intends to commence 'merely speculative proceedings'. This criterion requires the applicant to demonstrate a reasonable objective basis for the proposed claim ( Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1 ; Glencore International AG v Selwyn Mines Ltd [2005] FCA 801 ; (2005) 223 ALR 238 at [16] , [91], [96], [105]). (iv) Fourth, an applicant under a rule in the form of O 15A r 3 of the Federal Court Rules must show that the order sought is necessary in the interests of justice. That is, the applicant must show that "the making of the order is necessary to provide him with an effective remedy in respect of the actionable wrong of which be complains". (b) Allphones intends to sue the ACCC itself and the official who passed on the ACCC's Written Submission to Birch Partners and to Chew + Matthews for: (i) Breach of statutory duty. The alleged breach is a breach of s 155AAA(1) of the Act; and (ii) Breach of an equitable duty of confidence said to be owed by both the ACCC and the relevant ACCC official to Allphones in respect of Allphones' confidential information (especially its confidential financial information). (c) Objectively speaking, there is a reasonable basis for each of the foreshadowed causes of action. The ACCC knows the identity of the relevant ACCC official and has declined to reveal that identity. The disclosure of the identity of that person is in the interests of justice because it is necessary in order to provide Allphones with an effective remedy for the actionable wrongs of which it complains. The ACCC did not argue that the relevant principles were other than those encapsulated in Hooper v Kirella Pty Ltd [1999] FCA 1584 ; 96 FCR 1 at [31] [34] (pp 10 11). The ACCC also referred me to Rush v Commissioner of Police [2006] FCA 12 ; (2006) 150 FCR 165 at [3] [7] (pp 168 170). The ACCC resisted Allphones' application on two broad grounds, namely: The principles upon which that discretion will be exercised were explained by a Full Court of this Court in Hooper v Kirella Pty Ltd [1999] FCA 1584 ; 96 FCR 1 at [31] [34] (pp 10 11) as follows: Order 15A r 3 An applicant for relief under O 15A, r 3 must show that, after having made reasonable inquiries, he or she is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding against that person. Order 15A, r 3 plainly contemplates that the applicant needs to ascertain the identity of the relevant person in order to institute a proceeding in the Court against him or her. Secondly, the applicant must show that "some person" has or is likely to have knowledge of facts, or the possession of documents, tending to assist in identifying the prospective respondent. The rule is therefore available even if relief is sought against a person who is in no way implicated in the wrongful conduct of which the applicant complains. In other words, relief is available against a "mere witness" or bystander: Stewart v Miller [1979] 2 NSWLR 128 (Sheppard J), at 135 (a decision on the New South Wales rule). To this extent, the rule differs from the equitable bill of discovery. Thirdly, the applicant is not required to demonstrate the existence of a prima facie case against the prospective respondent: Levis v McDonald at 41, 44; Stewart v Miller at 139-140. Nonetheless, the power conferred by O 15A, r 3 is not to be used in favour of a person who intends to commence "merely speculative proceedings": Stewart v Miller at 140; Levis v McDonald at 44. A material factor in the exercise of the Court's discretion is the prospect of the applicant succeeding in proceedings against the person he or she wishes to sue: Exley v Wyong Shire Council (unreported, Supreme Court, NSW, Master Allen, 10 December 1976); noted Ritchie's Supreme Court Procedure (NSW) par [13,004]. Fourthly, the High Court has emphasised that an applicant under a rule in the form of O 15A, r 3 must show that the order sought is necessary in the interests of justice. That is, the applicant must show that: "the making of the order is necessary to provide him with an effective remedy in respect of the actionable wrong of which he complains." John Fairfax &amp; Sons Ltd v Cojuangco [1988] HCA 54 ; (1988) 165 CLR 346 at 357. These observations emphasise the link between identity discovery and the applicant's complaint that he or she has suffered from an actionable wrong. In the present case, the debate between the parties has been directed to principles 3 and 4 (as to which see [33] and [34] in Hooper v Kirella Pty Ltd [1999] FCA 1584 ; 96 FCR 1 extracted above). In Rush v Commissioner of Police [2006] FCA 12 ; (2006) 150 FCR 165 at [3] [7] (pp 168 170), Finn J said: Order 15A, rr 3 and 6 of the Federal Court Rules 1979 (Cth) provide respectively for what is colloquially known as "identity discovery" and "information discovery": see generally Hooper v Kirella Pty Ltd (1999) 96 FCR 1. I am empowered by our Rules to order identity discovery where (i) an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in this Court against that person; and (ii) it appears that some other person has, has had, or is likely to have knowledge of facts or possession of any document tending to assist in ascertaining who that person is. Information discovery in contrast is discovery against the very person against whom relief may be sought. It is tightly circumscribed in the requirements to be met before discovery may be ordered. These are that: (a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained; (b) after making all reasonable inquiries, the applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief; and (c) there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist in making the decision. Common to both species of discovery is a prospective proceeding which may be commenced in this Court. Inherent in this possibility are the requirements that the proceeding will be (a) within federal jurisdiction and (b) in respect of a cause of action known to law which is not purely speculative in character and which is not devoid of prospects. There is no difficulty in this matter in relation to the former of these requirements, some at least of the prospective causes of action being said to arise under Commonwealth legislation: see Judiciary Act 1903 Cth, s 39B(1A)(c). It is the latter requirement, which requires the identification of a possible cause of action (in this case a legal wrong done to the applicants), that is problematic. It is unnecessary for me to refer in detail to the growing body of case law on preliminary discovery. It is sufficient for present purposes to refer to the following. The O 15A, r 3 power to order identity discovery is not to be used in favour of a person who intends to commence merely speculative proceedings. A material factor in the exercise of the Court's discretion is the prospect of the applicant succeeding in proceedings against the person wished to be sued: Hooper v Kirella at [33]. Information discovery under O 15A, r 6 is significantly limited by the conditions imposed in subparas (a), (b) and (c) of that rule. Subpara (a) requires that there be reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court. While the threshold test under this subrule may be set at quite a low level: see Gull Petroleum (WA) Ltd v Tah Land Pty Ltd [2001] FCA 1531 at [59] ; the test for determining whether the applicant has a reasonable cause to have the requisite belief is an objective one: see Hooper v Kirella at [39]. Though it is not necessary to demonstrate a prima facie case, it is not enough merely to assert that there is, or is the mere possibility of, a case against the prospective respondent: Hooper v Kirella at [39]. Importantly, as Hely J observed in St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 ; (2004) 211 ALR 147 at [26] : (d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action: John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 ; BC200403021 at [13], [14], [17] and [73]. While O 15, r 6 expressly contemplates "fishing", it equally requires that each of the limiting conditions prescribed in subparas (a), (b) and (c) must be established. Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves: Airservices Australia v Transfield Pty Ltd [1999] FCA 886 ; (1999) 92 FCR 200 at [5] . The Full Court's judgment in Hooper v Kirella Pty Ltd 96 FCR 1 is binding upon me. I think that what is required is more than a claim worth investigating. In my judgment, what is required is a claim that is within the jurisdiction of this Court and which is not so near to being hopeless as would reasonably and properly justify the claim being described as "merely speculative". The foreshadowed claim must have some prospect of succeeding. Success in this context requires a cause of action known to the law and a real (as opposed to fanciful) prospect that some remedy might be granted. If the foreshadowed proceedings would almost certainly be susceptible to an order for dismissal pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), then preliminary discovery would ordinarily not be ordered. This is the flavour of the remarks of Jacobson J in Wyeth 255 ALR 352 at [24] [29].