Computershare Ltd v Perpetual Registrars Ltd & ors [2000] VSC 139

5. Computershare is engaged in the business of providing registry and bureau services for publicly listed companies. Its services include the provision of a share registry involving the maintenance of a database of shareholders and details, the processing of share transfers, the calculation and payment of dividends, the management of dividend re-investment plans and other various activities relating to the provision of share registry maintenance. It also provides bureau services consisting of the maintenance of a central computer system that contains the database of registry information and matters derived from the registry service provided by Computershare. It is alleged by Computershare that during the 1970s and 1980s it developed software to enable it to provide a comprehensive range of securities, registry and bureau services to its clientele. The software was called "SCRIP". During this period, also, Computershare expanded its share of share registry and bureau services to the point that it now alleges that it is the largest provider of registry services in Australia. Perpetual Registrars is the second largest provider of share registry services and it appears is a direct competitor with Computershare in the market place.

8. More recently Computershare has developed additional software entitled "Cosmos" with the intention that it will replace the other software, SCRIP. Cosmos is regarded by Computershare as the next generation of its present software.

11. The proceedings were commenced on 4 April 2000. The plaintiff ("Computershare") alleged that it entered into an agreement on 1 September 1998 ("the bureau services agreement") with the first defendant ("Perpetual Registrars") and the second defendant ("Perpetual Trustees").

14. Under the bureau services agreement Computershare agreed to provide its bureau services to Perpetual Registrars. The agreement contained particular confidentiality clauses in clause 23 as follows:

"23.1 Each party must use Confidential Information of the other party only for the purposes of this agreement 23.2 Each party may disclose the Confidential Information of the other party only to those of its officers and employees who have a need to know (and only to the extent that each has a need to know). The disclosing party must:

(a) ensure that all officers and employees to whom it discloses the confidential information are aware of, and agree to be bound by, the provisions of this clause 23; and

(b) enforce those confidentiality agreements at its expense.

23.3 If a party is required by law to disclose any Confidential Information to a third person (including, but not limited to, government) a party must.

(a) before doing so, notify the other party; and

(b) not do so until the other patty has had a reasonable opportunity to take any steps that the other party considers necessary to protect the confidentiality of that information.

23.4 The obligations of confidentiality under this agreement do not extend to information that (whether before or after this agreement is executed):

(a) is rightfully known to or in the possession or control of the receiving party and not subject to an obligation of confidentiality on the receiving party;

(b) is public knowledge (otherwise than as a result of a breach of any agreement by the receiving party); or

(c) the receiving party is required by law to disclose."

21. Computershare alleges that on a date unknown to it but it seems shortly before 20 March 2000 Perpetual Trustees and the Australian Stock Exchange ("the Exchange") entered into an agreement for a proposed joint venture. A description of the joint venture was contained in a public announcement made by Perpetual Trustees and the Exchange on 20 March 2000. The announcement informed the market place that Perpetual Trustees and the Exchange had formed a joint venture incorporating the operations of Perpetual Registrars. The announcement stated that the Exchange would invest M$50 in the venture to be known as "ASX Perpetual Registrars Limited ('APRL')". The announcement stated that

"APRL will aim to be the leading provider of registry and related services, initially for listed securities in the Australian market. In addition to incorporating and building on the traditional business of Perpetual Registrars, APRL will seek to grow that business and extend its services to existing and new markets including international markets. A priority for APRL will be to develop a next generation processing system to better serve listed entities, intermediaries and investors in the increasingly demanding world of Ecommerce, broadening share ownership and growing investment complexity. The joint venture will increase competition in the registry market by providing further service improvements and more cost effective services to issuers and shareholders."

25. The announcement stated that the joint venture would commence from 1 May 2000 "subject to completion of due diligence and any necessary regulatory approvals". It also nominated a number of contact points including the third defendant Mr Christopher Hamilton described as "General Manager, Clearing & Settlement Australian Stock Exchange". Immediately upon becoming aware of the announcement Computershare wrote to Perpetual Registrars expressing its concern that the proposed joint venture between Perpetual Trustees and the Exchange might have ramifications for the bureau services agreement between Computershare and Perpetual Registrars. As a consequence, in a letter dated 21 March 2000 Computershare requested urgent written advice as to the structure of the proposed joint venture and confirmation that the confidential information that was the subject of the bureau services agreement had not been disclosed to any person, in particular, the Exchange. Computershare requested, further, confirmation that no employee of Perpetual Registrars who had access to matters relating to the bureau services agreement would be involved in the development of the next generation processing system to be developed as part of the joint venture. Thereafter a course of correspondence ensued between Computershare and Perpetual Registrars. In a letter dated 24 March 2000 Perpetual Registrars informed Computershare that it was aware of its obligations under the bureau services agreement and had no intention of making improper use of the confidential information that was the subject of the agreement. Furthermore, and of some significance to Computershare, Perpetual Registrars advised that it only disclosed information relating to the bureau services agreement to its officers and staff who needed to know such information. The response gave rise to concern on the part of Computershare as to who in particular at Perpetual Registrars had access to the information that was the subject of the bureau services agreement. A correspondence warfare ensued leading to a threat by Computershare of legal proceedings.

28. It transpired that three days before the announcement of the proposed joint venture agreement between Perpetual Registrars and the Exchange the third defendant, Christopher Hamilton, then an employee of the Exchange was appointed as a director of Perpetual Registrars. Upon becoming aware of this fact Computershare became further alarmed particularly in light of the fact that the announcement was made between Perpetual Registrars and the Exchange whilst referring to Mr Hamilton as General Manager of the Exchange. No reference to his holding a position as a director of Perpetual Registrars was made. The course of correspondence between Computershare and the Perpetual interests culminated in the commencement of these proceedings.

31. During the course of the correspondence Computershare specifically requested from Perpetual Registrars an undertaking to the effect that no person employed by Perpetual interests who had access to the information that was the subject of the bureau services agreement would be involved in the development of the processing system contemplated under the joint venture with the Exchange. Perpetual Registrars responded by advising that it had taken all steps as it had done in the past to ensure that its officers and staff complied fully with the obligations of Perpetual Registrars under the bureau services agreement. As a consequence, Perpetual declined to provide the undertakings sought by Computershare.

34. Computershare through its managing director, Ms Penny Maclagan deposed to the facts relied upon by Computershare. The matter initially came before me on 7 April 2000 when Perpetual Registrars and Perpetual Trustees and Mr Hamilton proffered undertakings that they would not use the information that was the subject of the dispute or communicate that information to a person other than Computershare without giving seven days' written notice. The specific terms of the undertakings were:

(i) the terms and conditions of, and all schedules to, the Bureau Services Agreement referred to in paragraph 5 of the statement of claim;

(ii) confidential information belonging to the Plaintiff concerning the Plaintiff s technology proposal known as "COSMOS";

(iii) confidential information belonging to the Plaintiff concerning the Plaintiff's technology known as "SCRIPCOMMS"; or

(iv) confidential information belonging to the Plaintiff contained in any correspondence or other communication passing between the parties relating to any of the above matters.

b) 'Perpetual' means the First and Secondnamed Defendants.

2. Perpetual undertakes that it will not, without first giving to the Plaintiff not less than seven days written notice.

a) use the information other than for the purposes of the said Bureau Services Agreement;

b) communicate the information to any person other than the Plaintiff.

3. Hamilton undertakes that he will not, without first giving to the Plaintiff not less than seven days written notice:

a) use the information other than for the purposes of the said Bureau Services Agreement;

b) communicate the information to any person other than the Plaintiff."

51. The plaintiff's summons was adjourned before me until 14 April 2000 when the undertakings remained in place and, as a consequence, the interlocutory injunction application was not pursued at that time. Computershare persisted with its applications with respect to discovery and the affidavit of information from the defendants. It is those matters that form the subject of this judgment.

54. Significantly, none of the defendants filed an affidavit in opposition to the affidavit of Ms MacLagan. Consequently, the facts as alleged by the plaintiff stood unchallenged and unrebutted. Notwithstanding a seven day adjournment of the interlocutory application none of the defendants took the opportunity to file an affidavit refuting any of the matters deposed to by Ms MacLagan or, in particular, denying disclosure of the subject confidential information by any of the Perpetual interests to the Exchange in the course of the negotiations for and surrounding the joint venture agreement between those parties. Furthermore, an affidavit was not filed by Mr Hamilton denying that he had been given access to any information that was the subject of the bureau services agreement in the course of the negotiations surrounding the joint venture agreement. As a consequence, Computershare remained concerned that its confidential information had been divulged or would be divulged in the course of the expedition of the joint venture agreement. Accordingly, it sought an affidavit from the defendants setting out details of access to and disclosure of the alleged confidential information and, also, discovery of documents prior to the closure of proceedings. It also persisted with its application for non-party discovery against the Exchange. It is to be observed that the ambit of the orders sought by Computershare against the defendants and the Exchange were confined in all respects to a connection with the matters relating to the bureau services agreement.

57. In addition to its summons Computershare served a subpoena for production of documents upon Perpetual Trustees. Perpetual Trustees sought by summons to set aside the subpoena. Ultimately Computershare did not proceed with the subpoena. Both Perpetual Registrars and Perpetual Trustees filed a summons seeking to stay the proceeding generally, alternatively, specific claims in the statement of claim pursuant to order 23.01 of the Rules, alternatively, to strike out the said paragraphs pursuant to order 23.02 of the Rules. The parts of the statement of claim that were the subject of attack were those wherein Computershare alleged that Mr Hamilton was appointed to the board of Perpetual Registrars in order to be able to obtain access to the relevant confidential information for the benefit of the Exchange, that he would communicate that information in breach of the obligations of Perpetual Registrars and Perpetual Trustees under the bureau services agreement, that on dates unknown to Computershare the Perpetual interests had disclosed the confidential information to the exchange or persons acting on its behalf including Mr Hamilton, that the Perpetual interests had used the confidential information for the purposes of its negotiations with the Exchange and for the purpose of the making of the joint venture agreement and that the joint venture agreement constituted a breach by the Perpetual interests of terms of the bureau's services agreement. The statement of claim broadly set out these allegations but without particulars. It was pleaded in the statement of claim that the relevant particulars would be provided following discovery of documents. When the matter first came before me on 7 April 2000 Mr A.C. Archibald QC who appeared with Mr P.H. Clark for the Perpetual interests foreshadowed an application to strike out all or parts of the statement of claim on the basis that it was, among other matters, bereft of particulars and failed to make a claim that could be supported at law. The foreshadowed application came to fruition in the form of the summons issued by Perpetual Registrars and Perpetual Trustees pursuant to order 23 of the Rules.

60. I turn to consider each of the discrete components of relief sought by Computershare.

The plaintiff's application for an affidavit setting out particulars of use of the confidential information

64. The plaintiff in effect sought relief pursuant to the principles stated by the House of Lords in Norwich Pharmacal Co. v Commissioners of Customs and Excise [1973] UKHL 6; (1974) AC 133. The case was concerned with an infringement of a chemical patent. The owner of the patent sought to obtain the names and addresses of persons who had been involved in the alleged breach of the relevant patent. The House of Lords held that where a person, even innocently, became involved in the tortious acts of another that person was under a duty to give full information by way of discovery and disclosing the identity of the relevant wrongdoers. The approach of the House of Lords in Norwich is referred to as a "Norwich order" made by a court in order to enable an applicant to obtain the identity and location of persons who have participated in the wrongful use of information. In Sega Enterprises Limited v Alca Electronics (1982) FSR 516 Templeman LJ (at 525) observed that the power to make orders for discovery:

"should not be exercised in interlocutory proceedings, and certainly not ex parte, unless the court is reasonably satisfied that the plaintiff will, or probably will suffer irreparable damage if there is any delay in ordering discovery. Where the court is satisfied - and on ex parte applications, the court cannot be certain; it must act on the evidence which is before it - that the plaintiff will or may probably suffer irreparable damage, then the court may act with all the speed with which the court is capable and may impose ex parte orders for discovery. But such orders should never be made as a matter of course - never merely as part and parcel of an Anton Piller order - without investigation of the circumstances of each case and without the court coming to the conclusion that it is necessary for the long-term protection of the plaintiff that such a Draconian course should be taken".

68. (See also, Lawton LJ at 523; also Mercantile Group (Europe) A.G. v Aiyela & ors (1994) QB 366, 374 per Hoffmann LJ and 376 per Steyn LJ). The approach in Norwich and Sega has been followed in Australia (see Golf Lynx v Golf Scene Pty Ltd (1984) 59 ALR 343, 351-352.

71. In essence, a Norwich order involves the court making an order for discovery from a person against whom there is no substantive cause of action. In order to warrant the exercise of the jurisdiction by the court for discovery of the names and addresses against a third party it is necessary that two conditions be satisfied. These conditions were described by Hoffmann LJ in Mercantile (at 374): "First, the third party must have become mixed up in the transaction concerning which discovery is required. Secondly, the order for discovery must not offend against the 'mere witness' rule, which prevents a party from obtaining discovery against a person who 'will in due course be compellable to give that information either by oral testimony as a witness or on a subpoena duces tucem". Lord Hoffmann went on to observe, further:

"In the Norwich Pharmacal case the Customers and Excise Commissioners, by the exercise of their statutory powers, became 'mixed up' in the importation of infringing chemicals and an order for discovery did not offend against the mere witness rule because it sought discovery of the identity of the importers with a view to bringing proceedings against them. As Lord Reid said, at p.174: 'the foundation of the [mere witness] rule is the assumption that eventually the testimony will be available either in an action already in progress or in an action which will be brought later .... Here if the information in the possession of the respondents cannot be made available by discovery now, no action can ever be begun because the appellants do not know who are the wrongdoers and who have infringed their patent.' Mr. Mann says that the Norwich Pharmacal principle is limited to finding out the identity of a tortfeasor. But his is not the only situation which falls outside the mere witness rule. In Bankers Trust Co. v. Shapira [1980] 1 W.L.R. 1274 discovery was ordered against a bank which had received the proceeds of fraud. The purpose of discovery was to trace what he happened to the money. The bank had innocently become mixed up in the fraud and there was no infringement of the mere witness rule because there would be no point in the plaintiff seeking the information at the trial. By that time the money would be gone. In A v. C (Note) [1981] Q.B. 956, 961, Robert Goff J. made an order for disclosure in aid of a pre-judgment Mareva against a bank which had been joined solely for the purposes of discovery. In the case of discovery against a third party in aid of a post-judgment Mareva, the mere witness rule can have no relevance. The trial, if any, will already have taken place. It follows that all that is necessary to found jurisdiction is that the third party should have become mixed upon in the transaction concerning which discovery is required and, of course, that the court should consider it 'just and convenient' to make an order. The court will naturally exercise with care a jurisdiction which invades the privacy of an innocent party. But this is a matter to be taken into account in the exercise of the discretion. It does not go to the existence of the jurisdiction."

75. Drawing upon the conditions enunciated by Lord Hoffmann in Mercantile the question is prompted as to whether a third party has been identified in the present proceeding such as to warrant the exercise of the jurisdiction to require the affidavit of disclosure sought from the defendants. At the outset it must be observed that discovery is not sought against a third party as such. Rather, the discovery is sought from a party, namely, Perpetual Registrars and Perpetual Trustees and Mr Hutchinson, against whom Computershare already makes allegations of use of confidential information and breach of contract. In essence, Computershare on this component of its application seeks to extend the ambit of a Norwich order to encompass an order for discovery of information from an existing party to a proceeding in order to augment its case. Leaving aside this difference, as Lord Hoffmann observed in Mercantile (at 374), a Norwich order is not limited only to finding the identity of a tortfeasor. It can be used for the purpose of tracing the disposition of moneys obtained fraudulently and other purposes. Drawing again upon the observations of Hoffmann LJ in Mercantile (at 375) I am satisfied in the present matter that although Perpetual Registrars and Perpetual Trustees together with Mr Hutchinson are already parties to the proceeding they have become "mixed up" in a transaction involving both themselves and the Exchange in such circumstances that it is appropriate to order effective discovery of the identity of the persons to whom information has been conveyed. Of course, Computershare seeks to go beyond mere identification and location of parties who may have been involved in wrongful use of the alleged confidential information. Computershare seeks to elicit the actual information that has been disclosed and accessed.

78. A debate has ensued in recent times over the extent of a Norwich order. In McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 Young J expressed the view (at 645) that the principle in Norwich was limited to identify discovery. A similar view was expressed by Sheppard J in Survival & Industrial Equipment (Newcastle) Pty Ltd v Owner of Vessell "Alley Cat" [1992] FCA 242; (1992) 36 FCR 129 at 139. The broader approach adopted by Hoffmann LJ in Mercantile appears to have been approved by Gummow J in Breen v Williams (1996) 186 CLR 71, 120 and earlier in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434 at 445-6. The broader approach appears to have been cited with approval by the Full Court of the Federal Court most recently in Hooper & ors v Kirella Pty Ltd [1999] FCA 1584; (1999) 167 ALR 358, 365. The circumstances of the present proceeding warrant the application of the broader approach of the Norwich order. The plaintiff has provided evidence at an interlocutory stage which stands unchallenged and unrebutted of alleged wrongful use of confidential information. In order to identify the actual information used, the manner of use and, also, the identity of the persons who have had access to such information Computershare is entitled to an order in order to reveal those matters. There is information exclusively within the province of knowledge of the defendants as to the information utilised, the manner of use and the persons who have had access to such use. Furthermore, those persons potentially include third parties who are not at this point parties to the proceedings. An obvious potential such party is the Exchange itself. Similar to the case where a party was entitled to discovery of information in order to trace the disposition of fraudulently obtained moneys so too is Computershare entitled to trace what has happened to its information in the hands of the Perpetual interests especially vis-à-vis the dealings with the Exchange and Mr Hutchinson. If Computershare was compelled to await trial before the information was revealed to it it may well be too late as its dominance in the market place in the provision of its services would be undermined and, further, the value of its next generation software could be totally diminished. Furthermore, on the basis of the final principle stated by Hoffmann LJ in Mercantile I consider that it is in all the circumstances just and convenient to make the order sought by Computershare. I form this view on the basis that the evidence of Computershare stands unchallenged and unrebutted by the Perpetual interests. Secondly, at no stage notwithstanding reasonable opportunity to do so have the Perpetual interests taken the opportunity to depose on affidavit a denial of wrongful use of the information in the course of negotiating or for the purpose of their joint venture with the Exchange. In such circumstances it is appropriate that the plaintiff be granted the relief it seeks with respect to an affidavit of disclosure of the information and the identity of the persons who have been provided with access to such information.

The plaintiff's application for discovery pursuant to order 29.07 prior to the closure of pleadings

82. Mr Sher for the plaintiff relied upon a number of authorities to support the plaintiff's application for discovery prior to the closure of pleadings. The authorities were those concerned with pre-trial and non-trial discovery (see Mercantile Mutual Insurance (Australia) Limited v Household Financial Services Limited, unreported judgment of Kaye J delivered 22 May 1997, pp.7-8; Schmidt v Won (1998) 3 VR 345; Scarletti Pty Ltd and ors v Millwood Printing Co Pty Ltd, unreported judgment of the Court of Appeal delivered 20 and 28 July 1994). The authorities reveal a shift in attitude of the courts towards a more liberal approach even to the extent of allowing an applicant for pre-trial and non-party discovery to engage in fishing: Schmidt v Won, supra; Paxus Services Limited v People Bank Pty Ltd [1990] FCA 500; (1990) 99 ALR 728, 732. Mr Sher relied upon such modern approach to that type of discovery to support a liberal approach to discovery in this proceeding.

85. The circumstances in which discovery might be ordered early in proceedings which have already been commenced were also recently considered by the Federal Court of Australia in Trade Practices Commission v CC (NSW) Pty. Ltd. & Ors. (No.4) (1995) 131 ALR 581. This was a case involving allegations of breaches of the Trade Practices Act arising out of an alleged agreement, arrangement or understanding to fix tenders in construction projects. The statement of claim alleged various conversations which had the purpose or effect of fixing the tenders but the Commission was unable to give detailed particulars of the conversations because it was not present at any of them. Accordingly the Commission sought early discovery under the relevant rules of the Federal Court. The question before Lindgren J was whether or not such discover was necessary for the proper conduct of the proceedings. Lindgren J concluded that the discovery was necessary even though it was admittedly in order to enable the Commission to gather evidence for the purposes of prosecuting its case. Lindgren J quoted from the judgment of Cross J in Boyle v Downs [1979] 1 NSWLR 192 at p.205, in which Cross J had concluded that discovery should be ordered when such an order was "reasonably necessary for the disposing fairly of the case; and where a plaintiff has evidentiary difficulties, consideration of those difficulties will probably be the most important, but not the only, considerations relevant to determining whether the order is so necessary." Lindgren J agreed with Cross J that discovery should be ordered whenever it was necessary in the interests of a fair trial or of the fair disposition of a case (131 ALR at p.591). Lindgren J. stated:

"in a case such as this, where one party and not the other is likely to have documents relating to a matter in question, it seems to me to be prima facie 'necessary' in the sense referred to that discovery be ordered. But this general position is subject to the well established exception that discovery should not be ordered to enable a mere 'fishing expenditure' what does the reference to a fishing expedition' mean? After all ex hypothesi, the giving of discovery will often, if not always, reveal documents of which the other party was not previously aware ... what is meant is that the discovery must not be used for the purpose of ascertaining whether a case exists, as to distinct from the purpose of compelling the production of documents where there is already some evidence that a case exists... in WA Pines Pty. Ltd. v Bannerman (1980) 39 ALR 559, Brennan J said that what is required is that 'sufficient is shown to ground a suspicion that the party applying for discovery has a good case, proof of which is likely to be aided by discovery'. On the facts of particular cases, the application of the distinction between 'fishing' and 'non-fishing' may well be difficult".

89. As Lindgren J went on to note (at p.593) in that case:

"Apparently the Commission does not know what was said at either the meeting or at the alleged prior meetings. I do not think, however, that this means it does not know whether it has a case ... a well accepted situation [in] which the court often exercises its discretion by ordering discovery before particulars are supplied is that in which the party which seeks particulars and resists discovery is alone in possession of the relevant documents. Citations include the decision of Adam J in Egg & Egg Pulp Marketing Board v KH Korp Tocumal Trading Co Pty Ltd [19631 VR 378."

23 TPC v CC(NSW) Pty Ltd has been followed in a number of more recent decisions of the Federal Court of Australia including Metrological Service of New Zealand Ltd. v Director of Metrology & Ors (FC No. 657-95/3 August 1995) and KC & Ors v Shiley Inc & Ors [1997] 796 FCA (14 August 1997) and Bertran v Vanstone [1999] FCA 1753 (15 December 1999).

94. Mr Archibald QC argued that the authorities relied upon were confined in the application of the principles for which they stood to those types of cases. However, I observe that the principle of early discovery was recognised as long ago as 1885 by Bray in Principles and Practice of Discovery when the author observed (at p.611-12) that equity would grant a bill of discovery " ... in aid of some proceedings either pending or intended, and there must be allegations to that effect ... this jurisdiction was exercised to assist the administration of justice in the prosecution or defence of some other suit either in the Court itself or some other court. The discovery must be material to some suit instituted or capable of being instituted". Mr Archibald QC submitted that the court should only exercise the discretion under order 29.07 in exceptional circumstances. In support of this proposition he relied upon the observations of Else-Mitchell J in Latec Finance Pty Ltd v Jury (1960) NSWR 321 at 323.

"This general rule, which applies equally in other jurisdictions and to applications by plaintiffs as well as defendants, appears to me to be based in part upon the notion that it is impossible to determine what documents are material until the issues have been defined by pleadings, and partly upon the desirability of avoiding fishing expeditions (Davies v. Australian Joint Stock Bank (1898), 14 W.N. (N.S.W.) 152; Sunday Times Newspaper Co. Ltd. v. Sun Newspaper Co. Ltd. (1919), 36 W.N. (N.S.W.) 72; Witzig v. Dizick (1928), 46 W.N. (N.S.W.) 14; Gale v. Denman Picture Houses Ltd., [1930] 1 K.B. 588). But all these authorities concede that there are exceptional cases where the court's discretion can and will be exercised in favour of a party, whether plaintiff or defendant, who seeks discovery before pleading and, as is so often the case in comparable fields of practice such as the ordering of particulars and the administration of interrogatories, the modern tendency is to exercise the discretion by granting appropriate relief if justice cannot otherwise be done (Speyside Estate's Case, supra; Saphir v. Green (15 December 1950, unreported); Philliponi v. Leithhead (1959), 76 W.N. (N.S.W.) 150; Hutchings v. Rodriguez (1959), 76 W.N. (N.S.W.) 459; Meth v. Norbett Steinhardt & Son Ltd. (1959), 33 A.L.J.R. 78). It is not sufficient, however, merely to ask if the circumstances are exceptional because other considerations cannot be disregarded: even in exceptional circumstances discovery before pleading may be so oppressive that it should not be granted and, likewise, circumstances which could be characterized as exceptional may not be inconsistent with a desire by a party to pursue a fishing investigation. Therefore one must always bear in mind the extent to which justice requires that the applicant should receive a concession or indulgence not normally granted and, on the other band, the extent to which it is unjust or unfair to require a respondent to assume an obligation not normally cast upon respondents."

98. The Latec Finance case was one where the defendant sought particulars of the claim alleged against it and also early discovery before the closure of pleadings. Two observations can be made. The circumstances in Latec were entirely different to those before the court in the present instance in that the discovery sought is made by the plaintiff in order to enable it to ascertain critical facts that lie within the exclusive province of knowledge of the defendants. Secondly, Latec Finance expounded the principle of "exceptional circumstances" well before the insertion of the special discovery rules such as Rule 29.07 as contained now in the Rules of the Supreme Court.

101. Mr Archibald relied, also, upon the observations of the Federal Court, in particular those of Brennan J in W.A. Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 30 ALR 559 at 567. There Brennan J, with whom Bowen CJ agreed, considered when special powers of discovery should be exercised. Brennan J observed that the discretion will depend upon the nature of the exercise and the stage of the proceedings when the discovery is sought. The case was concerned with circumstances where the chairman of the Trade Practices Commission served a notice upon the applicant pursuant to s.155 of the Trade Practices Act 1974 requiring the applicant to furnish information and provide documents. The applicant instituted proceedings in the Federal Court seeking declaratory relief that it was not obliged to comply with the requirements contained in the notice. At first instance a single judge refused the applicant's application for discovery before the closure of pleadings to enable it to support and shore up its case that the chairman of the Trade Practices Commission had no reasonable grounds for believing that the applicant was capable of furnishing the information and documents required. Brennan J observed (at 567):

"Though the power required discovery be acknowledged, how should it be exercised? It depends upon the nature of the case and the stage of the proceedings at which the discovery is sought. In the present case, discovery is sought before there is a tittle of evidence to suggest that the Chairman did not have the requisite cause to believe which para 6 of the statement of claim would put in issue. Some assistance was sought to he derived from cases where discovery had been given to a party before he was required to give particulars of his claim: cases such as Ross v Blake's Motors (1951) 2 All ER 689, but in cases of that kind there is either an anterior relationship between the parties which entitles one to obtain information front the other, or sufficient is shown to ground a suspicion that the party applying for discovery has it good case proof of which is likely to lie aided by discovery. This is not such a case. This is a case where a bare allegation is made by para 6 of the statement of claim and, the paragraph being denied, the applicant seeks to interrogate the Chairman and ransack his documents in the hope of making a case. That is mere fishing. As Smithers J said in Melbourne Home of Ford Pty Ltd v Trade Practices Commission, supra (5 TPC at 35; ATPR at 18.087: 'In tile absence of such evidence the proceeding is essentially speculative in nature. In such circumstances for the Court to assist the applicants by making available to them the processes of interrogatories and discovery would lie to assist them in an essentially fishing exercise and from this the Court on established principles should refrain. His Honour's refusal of discovery was right and it might not to be disturbed."

105. The present case can be distinguished on the facts from the circumstances in W.A. Pines. There the applicant failed to obtain early discovery before there was "a tittle of evidence" and there was apparently no pre-existing relationship between the parties. Here there was an "anterior relationship between the parties" which entitles the plaintiff to obtain information from the defendants. Furthermore, on the basis of the unchallenged and unrebutted evidence relied upon by the plaintiff there is sufficient shown by Computershare to "ground a suspicion" that the plaintiff has a good case "proof of which is likely to be aided by discovery". As matters stand before me, I do not consider it can be said that the proceeding instituted by Computershare is "speculative in nature".

108. It was urged by Mr Archibald QC that I should read into order 29.07 a requirement that Computershare demonstrate exceptional circumstances. Order 29.07 was a novel rule introduced by Statutory Rule No. 99 of 1986. Prior to its introduction discovery between parties was governed by order 31.12. The latter rule vested in a judge the broad discretion to order discovery at any stage, either generally or limited to certain classes of documents, as the court in its discretion sought fit. Order 29.07 essentially codified the position at common law but in doing so left the matter entirely at the discretion of the court. There was not a prerequisite inserted in the new rule requiring an applicant for early discovery to satisfy the court of exceptional circumstances. In my view the imposition of the requirement of making out exceptional circumstances sets too high an obstacle for an applicant and, furthermore, in particular circumstances may well frustrate the very purpose for which the rule was inserted. In determining whether or not to exercise the discretion under order 29.07 it will be necessary for a court to assess the circumstances in each case. In this matter I am satisfied that the discretion ought be exercised on three grounds. Firstly, Computershare has demonstrated a pre-existing relationship between it and the first and second defendants. Secondly, Computershare has a strong and unrebutted suspicion as to the use of information that it regards as confidential. Thirdly, the statement of claim filed by the plaintiff has already been the subject of attack by the Perpetual interests. A summons was issued returnable before me by the Perpetual interests seeking to strike out the plaintiff's claim or, alternatively, particular paragraphs of the statement of claim. The summons was not pursued before me and Mr Archibald indicated that his client would be satisfied to have the summons dismissed or dealt with at another time. Be that as it may, the plaintiff is reasonably entitled to regard itself in a position where its statement of claim is potentially under attack and it requires information to enable it to further plead and particularise its case in circumstances where the relevant matters are exclusively within the province of knowledge of the defendant. In the circumstances, therefore, I consider it appropriate that the defendants provide discovery pursuant to order 29.07.

The plaintiff's application for non-party discovery pursuant to order 32.05

112. Mr Whelan QC who appeared for the Exchange resisted an order for non-party discovery against his client on three bases. First, the bulk of the documents are said to be with the defendants and not with the Exchange. Second, the Exchange was not asked to produce the documents sought. Third, the pleadings between the parties, that is the plaintiff and the defendants have not closed. Ultimately, each case must be considered on its merits and a court will determine whether or not to exercise a discretion under order 32.07 where it is warranted. In the present circumstances I am satisfied that the plaintiff has demonstrated sufficient dealings between the Exchange and the Perpetual interests. This view is especially borne out by the unrebutted and unchallenged relationship between Mr Hutchinson and both the Perpetual interests and the Exchange. Whilst it might be the case that the bulk of the relevant documents sought are with the defendants it nevertheless is appropriate for the Exchange to discover on a non-party basis to Computershare the documents that it does have in its possession. So far as it is said that the Exchange has not been requested to provide documents such response is nonsensical. If nothing else the service of the summons by Computershare on the Exchange constituted such demand. Whilst it might be said that the pleadings between the parties have not closed and therefore any non-party discovery by the Exchange is premature, in all the surrounding circumstances of this matter I am satisfied it is appropriate to exercise the discretion and order non-party discovery by the Exchange as sort by Computershare. In forming that view I am mindful of the fact that the proposed joint venture between the Perpetual interests and the Exchange is due to be launched a few days hence, on 1 May 2000. Furthermore, I am mindful of the fact that the Exchange has been prepared on the face of the announcement to invest up to M$50 in the proposed joint venture. Furthermore, and of particular significance is the fact that the proposed joint venture will on its face be in direct competition with the plaintiff. Notwithstanding that there are undertakings in place proffered by the defendants such undertakings relate to future conduct and do not encompass past conduct by those parties. It may well be, but is yet to be seen, that the discovery of documents and other information as sought by Computershare will bring to light circumstances that warrant it returning to the court seeking further urgent relief. Ultimately, I am satisfied that in the prevailing circumstances and urgency of this matter it is appropriate that the Exchange provide discovery to Computershare pursuant to order 32.07.