Decor Corporation Pty Ltd v Dart Industries Inc

But the principle that excludes discovery for the purpose of fishing out a case has undergone some development since the time when Edward Bray was writing. Order 15A rule 6 of the Rules of the Court expressly contemplates what might once have been castigated as "fishing". That rule takes as a sufficient starting point for an order for discovery before action a situation where "there is reasonable cause to believe that the applicant has or may have the right to obtain relief" (emphasis added). It would be incongruous if the power to order discovery were less extensive in favour of a party to a proceeding properly brought in the Court, than in favour of someone unable for lack of evidence to mount a case, seeking for that reason to resort to Order 15A. In fact, applicants have been held entitled to discovery where what they showed was just "suspicion that [they had] a good case proof of which [was] likely to be aided by discovery": Trade Practices Commission v TNT Australia Pty Limited (1994) 16 ATPR 41,960 at 41,962-3, citing W.A. Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 181 and other authorities. Of course, in the present matter, Microsoft claims to be in a stronger position than that of a party forced to rely on Order 15A. Microsoft says it is not seeking to find out whether there are "fish" in the pool; its trap purchase has already attracted a bite and landed a fish. In that situation, it claims that a general allegation, as pleaded in the amended statement of claim, is justified, and that discovery in support of that general allegation is entirely in accordance with principle. Rejection of an application for discovery on the ground that it is of a fishing nature should be confined to cases of the sort described by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250 at 254: "A 'fishing expedition', in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not." In para. 8 of the affidavit in support of Microsoft's application to amend the statement of claim, the deponent, Ms Chatillon, who was its legal administrator, made the following statement: "It is my belief that traders who engage in the practice of unauthorised hard disk loading [by this, she meant installing unauthorised copies of Microsoft programmes in the course of dealing in computer systems] often do so over an extended period of time and cease to do so only after their activities have come to the notice of Microsoft and after Microsoft has taken appropriate action against them ... . I have in the course of my work at Microsoft encountered many unscrupulous traders who have engaged in the practice of hard disk loading systematically and routinely over a period of many months or years before they were detected and action taken against them. It is often difficult to assess accurately the scale and frequency of such activities due to the absence of any proper or complete business records." This evidence was objected to, and strong reliance in the application for leave to appeal was placed on the proposition that its admission was wrong, and that his Honour's reasoning based on it was also wrong. What his Honour said about it was: "The evidence of Ms Chatillon is that personal computers are commonly sold by traders, such as the respondent, with operating systems installed. I accept that this evidence, and para 8 of Ms Chatillon's affidavit noted earlier, give reasonable cause to believe that the respondent has, in the course of its business, on occasions prior to the 'trap' purchase, sold personal computers with Microsoft programs installed, without the licence of the first applicant." Earlier in his reasons, the learned Judge had commented: "Ms Chatillon is saying that her experience establishes that 'traders' who do the kind of act that the respondent, a 'trader', is alleged to have done on or about 2 April 1996 in connection with the sale to Mr Pedersen [the trap purchase], commonly do so as part of a course of business conduct, rather than as an isolated 'one off' event."

Counsel's attack on the reasoning based on paragraph 8 relies on the precise language of the paragraph. He draws attention to the word "practice", and argues that one trap purchase does not constitute a practice. However, if there be a practice, a single action may involve engaging in that practice. His Honour, accepting evidence that a practice existed, and on the basis of evidence that Adelong engaged in conduct consistent with its involvement in such a practice on a particular occasion, has held that in the circumstances Ms Chatillon had reasonable cause to believe that which she professed to believe, namely, that Adelong had engaged in the practice described as "hard disk loading".

In my opinion, his Honour's decision was a clear example of the exercise of discretion in a matter of procedure. It was open to his Honour to hold that the amendment to the statement of claim, although its immediate object was to facilitate discovery, had a long term ultimate object of the proper pursuit of claims genuinely entertained by Microsoft. The question then was simply whether, in the Judge's discretion, he should make the order for discovery which he made. The whole matter was essentially one of procedure, and I do not think there is any sufficiently arguable case that his Honour was in error. Accordingly, the application for leave to appeal will be dismissed with costs. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate: Date: 9 April 1997 Counsel for the Applicant for leave: Mr D.M. Yates Solicitor for the Applicant for leave:Mr M.S. Smith Counsel for the Respondent: Mr J.V. Nicholas Solicitors for the Respondent: Mallesons Stephen Jaques Date of hearing: 7 April 1997