Case: Alphapharm Pty Limited v Eli Lilly Australia Pty Limited [1996] FCA 391
Outcome: referred to
In Alphapharm Pty Limited v Eli Lilly Australia Pty Limited [1996] FCA 391 ('Alphapharm'), Lindgren J made certain observations at [41] concerning Order 15A rule 6. These included: '1. Paragraphs 6 (a) and 6 (c) pose an objective test, the opening words "there is" in each paragraph signifying "there exists"; but the "insufficiency test" of para 6 (b) has both subjective and objective aspects. 2. Although I need not explore the subjective aspect fully, it seems clear that if the evidence went so far as to show that a particular applicant was already able to decide to commence a proceeding by, for example, showing that the applicant had in fact decided to do so, para 6 (b) would not be satisfied even though the information available satisfied the objective aspect of the insufficiency test referred to below. 3. The fact that a particular applicant genuinely feels unable, because of a lack of information, to decide to commence a proceeding does not, without more, satisfy para 6 (b); the objective aspect of the paragraph requires it to be shown as an objective fact that the applicant lacks "sufficient information to enable a decision to be made whether to commence a proceeding". 4. In my view, the objective aspect of para 6 (b) invokes a notion of "reasonable sufficiency", the question raised being whether it is reasonable that the applicant for an order be required to take its decision without having the information to become available from inspection of the document or documents of which discovery is sought.' Much the same was said in respect of paragraph (b) of rule 6 by Emmett J in Leighton Contractors Pty Limited v Page Kirkland Management Pty Limited [2006] FCA 288 at [6] . 44 In his reasons for judgment at [46] in Alphapharm , Lindgren J said: '... I do not imply that an applicant for an order under the rule must lead evidence that without the documents sought, it will not sue. The rule is, however, directed to aiding an applicant who is having real difficulty, and reasonably so, in deciding whether to litigate because of a lack of key information, whether relating to its own case or to that of the proposed respondent, which is in the possession of the respondent. ...' 45 It would seem to me unjust to allow relief to be granted against a stranger, albeit a prospective respondent, under Order 15A rule 6 if the applicant failed to place before the Court the information which it did have, to enable a decision to be made whether to commence a proceeding in the Court to obtain the relevant relief. One of the issues will be, whether viewed objectively or subjectively, the applicant had sufficient information. 46 If information going to the ability of a person in the position of Telstra to make a decision whether to commence a proceeding in the Court against the Minister as a prospective respondent included information contained in documents which may otherwise enjoy legal professional privilege, it would seem surprising if the applicant could advance its claim for relief under Order 15A rule 6 without laying bare all of the information which it had, whether privileged or not.