Case: Rush v Commissioner of Police [2006] FCA 12 ; (2006) 229 ALR 383
Outcome: cited
It is unnecessary for me to refer in detail to the growing body of case law on preliminary discovery. Because of their immediate relevance, it is sufficient for present purposes to refer to observations I made in Rush v Commissioner of Police [2006] FCA 12 ; (2006) 229 ALR 383 at [6] - [7] : "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 [96 FCR 1] 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 at [39]. Importantly, as Hely J observed in St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147; [2004] FCA 1360 ( St George Bank ) (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 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 Ltd v Transfield Pty Ltd (1999) 92 FCR 200; 164 ALR 330; [1999] FCA 886 at [5] ." 5 Rapid, as I understand it, has developed a system for the prefabrication of buildings and holds patent rights in respect of that system. In early 1998 the applicants sought from Rapid an agency to market Rapid's product in India. It would seem that a prospective purchaser would be required to construct a Rapid manufacturing plant to produce the product and the agency related to the sale of the plant itself. The terms of the agency were contained in the following letter from Rapid to Mr Kirsten of 11 May 1998: "Thank you for your letter of April 28 1998 in which you request to represent our company in India exclusively for up to December 31 1998. As I explained to you before, we are not prepared to give exclusive rights for countries, especially not as big as India. We are currently working closely with Sagric, who are currently also in India promoting our product whenever appropriate. Ernst, we are prepared to give you and Agim Khaled non exclusive rights to India until December 31 1998. As soon as you have identified an interested party, the name must be registered with us and that company will then automatically become exclusive for you to receive commission as soon as a contract has been fulfilled. (As long as RBS has not yet been dealing with that company or person before.) The commission RBS will pay is 5% of the total value of the Rapid manufacturing plant plus 10% of the yearly royalty stream. It is important that Agim Khaled meets with us before he starts marketing in India. We must discuss his approach, give him some product knowledge and show him the plant and some projects first. Please consider the above and let me know if you want to proceed on that basis." (Emphasis added.) 6 To anticipate matters, an attempt was later made in 2001 to vary the registration requirement. This was resisted. I would also note that the applicants propose to contend that there is an ambiguity in what "registration" means in this context and that the contract was varied by conduct for at least a period in 1999. There is evidence, though, of Rapid being notified in writing of the names of "interested parties".