Case: Hooper &amp; Ors v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1
Outcome: cited
As to the settled principles to be applied in an application pursuant to O 15A, r 6, the principles are these: the rule is to be beneficially construed and afforded the fullest scope its language reasonably allows; the 'proper brake' upon any excesses in the application of the rule lies in the exercise of the court's discretion ; the test for determining 'reasonable cause to believe' is an objective one; 'reasonable cause to believe' strikes a relationship with whether the applicant has a right to obtain particular relief or whether the applicant may have a right to relief and thus hypothecates a remedial outcome in the proposed proceedings on the assumption the evidence makes out each integer in the applicant's cause of action; such a belief, on either footing, requires more than mere assertion, suspicion or conjecture; a mere possibility of a right to relief is insufficient; the evidence, that is, an assessment of all the evidence, must incline the mind towards acceptance of the existence of a matter or fact in controversy out of which a right to relief arises or may arise; it is no answer to an application under O 15A, r 6 to say that the proceeding is in the nature of a 'fishing expedition'; the rule contemplates that an applicant will forensically examine the field of documents the subject of the order expressly for the purpose of enabling a decision to be made whether to commence a proceeding; although the rule contemplates such an examination of the respondent's documents the subject of the order, the invasive nature of the order is predicated upon an objectively established reasonable cause to believe that the applicant has or may have a right to contended relief; although an applicant does not need to establish a prima facie case, an applicant must establish that there is a reasonable cause to believe that each element of the potential cause of action is made out; although the threshold test may be set at quite a low level, the evidence must establish facts crystallising all the elements of a cause of action grounding the possible grant of the contended relief (see: St. George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 per Hely J [25] [29]; Hooper &amp; Ors v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1 at pp 11 and 12 per Wilcox, Sackville and Katz JJ [35] [40]; Glencore International AG v Selwyn Mines Ltd (2006) 223 ALR 238 at pp 240 and 241 [8] [16] per Lindgren J; C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864 at [12] per Gyles J). 18 First , the reference in the authorities to the test for determining 'reasonable cause to believe' as an objective test, recognises that the phrase in O 15A, r 6(a) 'where there is reasonable cause to believe' connotes 'where to the court at the hearing of the application' there is reasonable cause to believe. Secondly , a demonstrated controversy of fact emerging on the evidence in the application, to be resolved by findings of fact in the contemplated proceeding out of which a right to obtain identified relief is said to arise, will not answer a contention that there is reasonable cause to believe that the applicant may have a right to the relevant relief. However, the controversy of fact must demonstrate that first, the contended facts go beyond mere suspicion, assertion or conjecture and secondly, potential findings of fact in favour of the applicant support all elements of the cause of action that may give rise to the contended relief (see Minister for Health and Aged Care v Harrington Associates Ltd [1999] FCA 549 per Sackville J [28]; Paxus Services Limited v People Bank Pty Limited (1990) 99 ALR 728 per Burchett J (NG 670/1990); Hooper v Kirella (supra) [39]; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at 541-2 per Sackville J [24]).