Case: John Fairfax &amp; Sons Ltd v Cojuangco [1988] HCA 54 ; (1988) 165 CLR 346
Outcome: followed
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. A judge called upon to decide whether an order for preliminary discovery should be made must consider whether the applicant will be left without an effective remedy if an order is not made ( John Fairfax &amp; Sons Ltd v Cojuangco [1988] HCA 54 ; (1988) 165 CLR 346 at 357). Although the judge is not called upon to decide the foreshadowed proceedings in order to determine the discovery question, he or she is required to consider whether the foreshadowed claims are devoid of prospects. This may require the judge to form a conclusion as to whether or not a particular defence might well succeed on the materials before him or her ( John Fairfax &amp; Sons Ltd v Cojuangco [1988] HCA 54 ; 165 CLR 346 at 357). In the present case, the two matters which must be considered are: The two questions are related. As to the question posed in [56(a)] above, Allphones relies upon two potential causes of action as against the relevant ACCC official. These are: The statutory duty alleged to have been breached is that which is contained in s 155AAA(1) of the Act. That subsection is in the following terms: 155AAA Protection of certain information (1) A Commission official must not disclose any protected information to any person except: (a) when the Commission official is performing duties or functions as a Commission official; or (b) when the Commission official or the Commission is required or permitted by: (i) this Act or any other law of the Commonwealth; or (ii) a prescribed law of a State or internal Territory; to disclose the information. This is a case where it is difficult to see the evidentiary matrix altering much if at all were the substantive issue to be litigated. The position is analogous to the circumstances under discussion in the passages from John Fairfax &amp; Sons Ltd v Cojuangco [1988] HCA 54 ; 165 CLR 346 to which I have referred at [55] above. Further, I think that the ACCC's Written Submission is a "written submission" within the meaning of O 46 r 6(2)(g) of the Federal Court Rules and that, for that reason, it was already "publicly available" within the meaning of s 155AAA(16) of the Act by 14 October 2008. Allphones submitted that the document was not a written submission because: