Coates v. Report card Pty Ltd

Australia

26.06.2019

Civil

Court is empowered to make an order for pre-action discovery on basis that, Defendant has possession of information that will assist Plaintiff’s case

The Plaintiffs have applied for orders for pre-action discovery pursuant to Order 26A Rule 3 of the Rules of the Supreme Court 1971 (RSC). The first to fifth plaintiffs are directors of the sixth plaintiff, Flinders Mines Ltd. The defendant, Report Card Pty Ltd, owns and maintains a website (the Forum). The Plaintiffs seek an order that the Defendant provide to the Plaintiffs copies of documents in its possession, custody or power which evidence the registration information, IP address records and the name, address and/or contact details of 23 user names listed in the originating summons (the Users).

Order 26A Rule empowers the Court to order another person (the non-party) to give discovery to the applicant, to identify a person against whom the applicant appears to have a cause of action (the potential party) where the following conditions are satisfied: 1. The applicant appears to have a cause of action against a person (the potential party); 2. The applicant wants to commence proceedings against the potential party; 3. The applicant has made reasonable enquiries, but has not been able to ascertain a description of the potential party sufficient for the purposes of commencing proceedings against the potential party; and 4. There are reasonable grounds for believing that the non-party had, has, or is likely to have had, or to have, possession of information, documents or any object that may assist in ascertaining the description of the potential party.

There are reasonable grounds for believing that, the Defendant has possession of information that will assist the plaintiffs in ascertaining the identity of the Users. The Plaintiffs have satisfied the conditions to enliven the court's jurisdiction to make an order for pre-action discovery. The application is not opposed by the Defendant. The Plaintiffs have no effective remedy against the Users, if an order is not made. It is appropriate to make the orders sought.

Tags : Pre-action discovery Documents Discretion

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