Hatfield v TCN Channel Nine Pty Ltd

Supreme Court of NSW|2010-03-03|Before: Harrison J

These proceedings or any subsequent interlocutory injunction proceedings are within the s 17(3)(c) exception in that such proceedings are "for or in respect of any right or liability conferred or imposed by" the transcript.

Section 17 does not operate so as to exclude evidence that the witness in question made certain statements. The position is analogous to parliamentary privilege where Hansard may, in accordance with a long line of authority, be tendered to prove things said in Parliament.

The plaintiff has waived any entitlement to object under s 17 by bringing these proceedings and, specifically, by reading paragraphs 8 and 9 of Mr Kalantzis' affidavit of 18 February 2010. 50 The first proposition is simply wrong. The transcript clearly indicates that at the commencement of her evidence the plaintiff assented to the proposition put to her by counsel assisting the Commission that she still "wished to give evidence unwillingly". Nothing could be clearer. The fact that the plaintiff is said by the first and second defendants to have come forward voluntarily as a witness to give evidence to the Royal Commission is quite different from the fact that she proceeded to give that evidence unwillingly with the associated statutory protection afforded to her in respect of evidence given in that way. 51 Nor do I agree that these proceedings or any subsequent interlocutory injunction proceedings are within the s 17(3)(c) exception in that they are proceedings "for or in respect of any right or liability conferred or imposed by" the transcript. The defendants argue that defences created by sections of the Defamation Act 2005, such as s 25, s 26 and s 29, are relevantly rights conferred upon the defendants by the transcript. They ask rhetorically how they or a similarly placed defendant in defamation proceedings relying upon a defence of fair protected report could prove that they had accurately reported what occurred at a Royal Commission other than by tendering the transcript. The defendants characterised any conclusion that prevented them from relying upon the transcript in such circumstances as "so anomalous and absurd that … it cannot have been intended by the legislature". 52 The defendants asserted that by virtue of s 17(3)(c), any book, document, or writing is admissible in civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing. The defendants contended that the transcript was a writing that conferred a right upon them, presumably to defend the plaintiff's claim in defamation against them. 53 In my opinion there are difficulties with that submission. Section 17(3)(c) is concerned with proceedings in which the right conferred or liability imposed is the subject matter of the proceedings. This flows from the words "for or in respect of". These proceedings are not concerned with any right or liability conferred or imposed by the transcript. The fact that the defendants may wish to rely upon the transcript to prove the facts necessary to establish a defence does not mean that the proceedings are "for or in respect of" the transcript that they wish to use for that purpose. It seems to me that s 17(3)(c) is intended to avoid the consequence that would have flowed if the book, document or writing that conferred a right or imposed a liability could not be tendered or used in later civil proceedings seeking in effect to enforce the right or liability. If it were otherwise, the unfortunate and unintended result would have been that the practical utility and value of a book, document or writing might be lost as a collateral effect of its compulsory production pursuant to s 17(1) and the realisation of that right or liability would thereby be frustrated. The transcript of the plaintiff's evidence in the Royal Commission is not a document contemplated by the provision. 54 Contrary to the defendants' third submission, s 17 does operate to exclude evidence that the witness in question, in this case the plaintiff, made certain statements. That is what the section says, as confirmed by the Court of Appeal in Hartmann. The passage at 147 taken from the judgment of Cole JA in that case does not seem to me to be susceptible of any misunderstanding. 55 The material contained in par 8 of Mr Kalantzis' affidavit is the material set forth above at [5]. At par 9 of his affidavit Mr Kalantzis confirms the plaintiff's denial of the allegations. The defendants contend that the plaintiff has thereby waived the privileged status of the transcript because she impliedly relies upon what it contains to make good her allegations against the defendants. The argument is developed in the following way. 56 The protection granted by s 17 is a privilege and like all privileges may be waived by the person having its benefit. Specifically, s 17 is not, and has not been treated by the courts as, an absolute prohibition on the use of evidence given at a Royal Commission. For example, in R v Bayeh [1999] NSWCCA 82 the defendant tendered his own transcript from the Wood Royal Commission at his later sentencing hearing. The Court of Criminal Appeal held that the trial judge was entitled to take it into account in ways adverse to the defendant on sentencing. While the Court of Criminal Appeal did not talk in terms of waiver, the defendants contended that it is clear that its approach was influenced by the fact that having tendered the transcript, the defendant had waived his rights to object to any permissible use of the document. 57 In that case Grove J said this at [22] - [24]: "[22] In the present case no tender of the answers given by the applicant (evidenced by the transcript) was made "against the applicant". His own counsel tendered the transcript…

[23] This argument effectively raised a point of principle and the Court constituted pursuant to s 6AA of the Criminal Appeal Act is unsuitable for the resolution of a disputed issue of general principle… It is, I apprehend, somewhat unusual for any litigant to place before a court material which is expressly inadmissible against that litigant but if it is chosen to tender such material then we were referred to no authority for the proposition that that litigant could impose restrictions upon its use.

[24] I am unpersuaded that the mere fact that the material was before his Honour for one purpose intended by the applicant placed any restriction upon his Honour's use of the material. Unless special rules apply, evidence generally which is before a tribunal is available for all legitimate purposes. Further I find that in the particular circumstances no breach of s 17(2) of the Royal Commissions Act 1923 is manifest and this Court should not intervene in respect of the use by Stewart ADCJ of the material that he was expressly invited to read." 58 Waiver was explicitly dealt with by Ireland J in Bayeh v New South Wales [1999] NSWSC 1070; (1999) 108 A Crim R 364 at [43] and [44]: "[43] As stated above, the plaintiff, having taken objection to giving the relevant evidence before both Commissions is entitled to claim privilege against self incrimination and object to the evidence being placed before the Board. Nevertheless, it is of the essence of a privilege that it may be waived by the person who enjoys it: Cross on Evidence 4th Ed 1991 p 667. Waiver of privilege may be express or implied; it may be deliberate or inadvertent: Great Atlantic Insurance Co v Home Insurance Co (1981) 1 WLR 529.

[44] The purpose of the tender of exhibits B and D before the Parole Board was made plain beyond question. It was the clearest possible waiver of privilege in the course of supporting the plaintiff's claim for release on parole. The submission made by Mr Waterstreet that evidence tendered may be used by the Board favourably to the plaintiff but that the Board is prohibited by virtue of privilege from considering the evidence in a light adverse to the plaintiff, does not find favour. The plaintiff cannot approbate and reprobate in this way." 59 Here the plaintiff, through her solicitor, is said to have made an assertion that it is false to claim that she had been "exposed as corrupt in the mass media and the Wood Royal Commission and forced to resign from the police force" or that she is "a hypocrite in that she asserted at the Wood Royal Commission that she detested police corruption but was herself corrupt". That assertion puts directly in issue what the plaintiff did at the Wood Royal Commission and operates in the defendants' submission as a clear waiver of the right to object under s 17. 60 The defendants contended that there is a further analogy with the circumstances in which legal professional privilege may be found to have been waived. It is said to be notorious that if a party puts his or her state of mind in issue, for example, by pleading reliance on a misleading statement, the party will have waived legal professional privilege in any advice he or she may have received prior to the transaction in question. The defendants submitted that the principle was accurately stated by Hodgson J in Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87 at 94 - 95: "If a party, by pleadings or evidence, expressly or impliedly makes an assertion about the content of confidential communications between that party and a legal adviser, then fairness to the other party may mean that this assertion has to be taken as a waiver of any privilege attaching to the communication." 61 The defendants contended that the plaintiff here has expressly made an assertion about the content of her evidence to the Wood Royal Commission as a result of what Mr Kalantzis has said in his affidavit. For example, the plaintiff has denied that she was exposed as corrupt in the Wood Royal Commission. She has also denied that she is a hypocrite because she inconsistently asserted to the Commission that she was not corrupt when the opposite was true. She has also denied that she has conducted herself so as to warrant prosecution for perjury. 62 The underpinning concept is fairness. Is it fair for the plaintiff to deny the truth of these allegations, which she says arise from what she anticipates the defendants will shortly publish, and simultaneously seek to quarantine the use of material potentially capable of use in challenging the truth of her denials? I think not. There may be some debate about precisely what parts of the transcript are relevant to these issues and what is their ultimate effect if admitted. As I am otherwise of the view that the transcript is relevant, those are matters that do not affect consideration of questions of waiver. Hearsay 63 The plaintiff asserted that the transcript was inadmissible because it is hearsay: s 59(1) Evidence Act. According to the plaintiff, it does not fall within any exception to the hearsay rule. 64 Section 75 of the Evidence Act is in these terms: " 75 Exception: interlocutory proceedings

In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source." 65 The plaintiff does not contend that the present proceedings are not proceedings to which s 75 applies. On the contrary, the plaintiff submitted that the defendants had failed to comply with the section by omitting to adduce evidence of the source of the transcript. 66 I have already expressed the view that the transcript, contrary to the plaintiff's submission, has been shown to be, or should be taken to be, authentic. In my view that finding forecloses upon the plaintiff's ability to assert that the defendants have not adduced evidence of the source of the transcript. It would be churlish to come to a different conclusion. In my opinion s 75 does not operate in the circumstances of this case to make the transcript inadmissible as hearsay. Prejudicial, misleading or confusing etc 67 The plaintiff finally contended that the transcript should be excluded as a matter of discretion in accordance with s 135 of the Evidence Act. That well-known section provides as follows: " 135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(c) cause or result in undue waste of time." 68 The plaintiff submitted that the transcript was prejudicial because the plaintiff was not present in Court and was therefore not in a position to answer any allegations made against her or about her by reference to it. She was not given any warning that it would be used in the way that the first and second defendants sought to use it and was in practical terms denied an opportunity to respond to it. 69 The plaintiff also submitted that the transcript was misleading because it did not appear to be a complete transcript of her evidence. The plaintiff therefore was deprived of the opportunity to have me compare the evidence in the transcript with other answers that may have qualified it in some way. 70 The plaintiff did not attend the hearing of this application. That was perfectly understandable, especially given the amount of media attention that her appearance at the Royal Commission had originally generated, and in view of the likelihood that her appearance in these proceedings might have had a similar effect. It is not inconsistent with her stated or inferred reasons for commencing these proceedings in the first place. However, the plaintiff has neither sworn an affidavit seeking to correct any apparently misleading portion of the transcript, nor has she made any submissions directed to highlighting any errors that it is said to contain. It is one thing to speak in hypothetical terms about the existence or possibility of prejudice, but often quite another thing to isolate or identify it in fact. The plaintiff has not done this and there is no basis as far as I can determine to exclude the transcript for the reason that some countervailing matter of prejudice or other infirmity substantially outweighs its probative value. 71 For the reasons set forth above the transcript of the plaintiff's evidence given before the Wood Royal Commission is admissible before me. Correspondence 72 All parties relied on a series of correspondence that heralded these proceedings. Some of that correspondence is instructive. 73 On 2 February 2010 the solicitor for the plaintiff wrote to the first defendant on the topic of Wendy Hatfield and "Underbelly - The Golden Mile". The letter is relevantly in these terms: "Our client is the subject of chapter 3 in the book entitled ' Underbelly - The Golden Mile' in which she is gravely and indefensibly defamed. Appropriate action is being taken against publishers of that book.

We are instructed that Channel 9 and the Nine Network have been promoting, throughout Australia, the imminent broadcast of a television series based on the book, entitled Underbelly 3: The Golden Mile .

Our client reasonably fears that the television series will dramatise the defamatory attacks made upon her in the book. If that is the case, she has instructed us to advise on her rights to enjoin publication of any program containing references to herself, and further to seek damages for any publication of the television material.

We hereby put you on notice that the following assertions of fact made or imputed in the book (Chapter 3 - Working Blue) are false:

That she, a police officer, had a sexual relationship with John Ibrahim, knowing him to be a notorious criminal;

That she achieved promotion in the police force by granting sexual favours;

That she is a hypocrite who asserted to the Wood Royal Commission that she detested police corruption, but was herself corrupt;

That she was guilty of misconduct in relation to John Ibrahim's avoiding prosecution for unlicensed driving, condoning lies he told to police;

That she was guilty of misconduct in becoming intimately involved with [John] Ibrahim, who she knew to be a criminal;

That she was guilty of a number of acts of misconduct by reason of her relationship with [John] Ibrahim, a criminal;

That she was exposed as corrupt in the mass media and the Wood Royal Commission, and forced to resign from the Police Force;

That she was guilty of misconduct in relation to the death of a drug dealer (Assad), acting as [John] Ibrahim's 'tame cop girlfriend';

That she was guilty of perjury; alternatively that she so conducted herself as to warrant prosecution for perjury.

Our client stands ready to respond to any queries you may have as to the facts supporting her denials in order to disabuse you of any belief in the truth of the defamatory attack made upon her in the book, which responses she is confident will lead to your deciding to remove any reference to her from the television series.

We ask that you provide us with a DVD copy or, at the very least, a transcript of any part of the television series in which reference is made to Ms Hatfield, in order that we can provide you her response in rebuttal of false allegations of fact about herself. If you choose to publish the television series without facilitating this process, Ms Hatfield will rely on that conduct for aggravated damages and as proof of express malice.

Our client reserves all her rights in relation to any defamatory material that your companies may broadcast, including series publicity and promotional material." 74 That letter provoked the following response on 9 February 2010 from the corporate counsel at the first defendant: "As you are aware, the book titled Underbelly: The Golden Mile to which you refer is not published or written by Nine. The television series Underbelly: The Golden Mile is a dramatisation of some but by no means all events and characters contained in the book and as a result is quite different from the book in a number of material respects.

Nine denies that any material it may publish as part of or in connection with [the series] will give rise to any claim for damages in defamation by your client.

There is no legal basis upon which your client is entitled to the material sought. Such material is commercial in confidence, and Nine denies that its refusal to accede to such a request is in any way evidence of malice towards your client or could be relied upon in support of a claim for aggravated damages.

It is well established as a matter of law that a claim for defamation, where there is an arguable defence, is not a proper basis upon which injunctive relief may be sought or granted. If any such application is made, you are on notice that Nine intends to defend it and will rely upon this letter in support of an application for indemnity costs. Further, your client is on notice that Nine requires reasonable notice of any such application so as to be properly represented." 75 The plaintiff's solicitor wrote back on 17 February 2010 as follows: "We enclose herewith draft Summons and affidavit in support seeking orders for preliminary discovery as set out in the Summons. We have not included the annexures to the affidavit.

Please let us know, by 4.00 pm tomorrow Thursday 18 February 2010 whether your client will consent to providing us with a DVD copy and/or transcript of the television series 'Underbelly 3: The Golden Mile' your network proposes to broadcast.

In the alternative we would require a statutory declaration (subject to our approval), by an authorised officer of each of the defendants, stating that our client is not depicted, in any way either directly or indirectly, in the television series.

If your clients do not comply with our above requests by the time stipulated, we will have no alternative but to file the summons and affidavit in the Supreme Court registry the following day and seek the earliest possible hearing date." 76 The following response to that letter was then sent on 18 February 2010 by the solicitors for the first defendant: "Your foreshadowed application for preliminary discovery orders is misconceived for the following reasons:

As outlined in paragraphs 17 and 18 of the draft affidavit of Mr Kalantzis, the grounds relied upon by your client for preliminary discovery are:

(a) to commence defamation proceedings in relation to the broadcast of 'Underbelly - The Golden Mile'; and

(b) to obtain advice in relation to an interlocutory injunction against the broadcast of the program which would otherwise defame your client;

An essential element of a cause of action based in defamation is publication to a third party. Unless and until the program is broadcast, your client is not entitled to make a claim regardless of what documents are in existence. Accordingly the requirement of Rule 5.3(1) of the Uniform Civil Procedure Rules is not satisfied;

The second ground relied upon, for advice to obtain an interlocutory injunction against the broadcast of the program, is also a claim which your client is not entitled to make given the well established authority, (most recently ABC v O'Neill 2006 HCA 46) that a Court should not restrain publication in a defamation action in circumstances where there is an arguable defence. For present purposes, we are instructed that any defamatory imputations which may be conveyed against any person identified in the program, are substantially true and will be defended on that basis." 77 On 22 February 2010 the solicitor for the plaintiff wrote to the third defendant in terms that were for all relevant purposes identical to his original letter to the first defendant dated 2 February 2010. The third defendant replied by letter dated 23 February 2010, which relevantly included the following: "3. I retained senior counsel, from a very early stage, to review all scripts, script amendments and Network Cuts for the series.

It is Screentime's firm view that the material in the series will not, when published, convey (or even be capable of conveying), of and concerning your client, any of the imputations set out in paragraph 8 of the affidavit of Mr Kalantzis.

It appears that a proposition that is implicit in your letter of 22 February and in the affidavit of Mr Kalantzis is that the material in the series constitutes a mere replication of what is contained in the book, in particular chapter 3 of the book, the cover of which is annexure 'D' to the affidavit of Mr Kalantzis. That proposition is erroneous." 78 An arguably important part of the correspondence is to be found in the plaintiff's solicitor's reply to that letter, which is dated 24 February 2010, and which is relevantly in the following terms: "In the light of the fact that our client is the primary subject of chapter 3…of the book entitled ' Underbelly - The Golden Mile' it is reasonable to assume that the television series will dramatise the defamatory attacks made about her in that book. We cannot envisage how she can even be referred to in the context of the subject matter of the series without being defamed.

As you can see from the annexures to the affidavit of the writer relied on in support of the summons, we have sought from the Nine Network a DVD copy of the television series 'Underbelly 3: The Golden Mile', or, at the very least, a transcript of any part of the television series that refers to or depicts our client. In the alternative we have sought undertakings and assurances that our client is not referred to or depicted in any way in the television series. Both of these requests have been refused.

It would be a simple matter to alleviate our client's concerns for your client to provide an undertaking or written assurance that our client is not depicted or referred to in any way in the television series.

If she is so referred to or depicted, it would be expedient and less costly (for all parties) to provide us with a DVD copy or the transcript of the relevant portion of the television series. This would, of course, be subject to the usual undertakings by us as to confidentiality, until the programme is broadcast. If your client's concern relates to the issue of confidentiality we would have no difficulty attending your premises at a suitable time in the next week to view the material in question as opposed to being provided with a copy.

We note the information in paragraph 3 of your letter that senior counsel has reviewed all of the scripts. This information provides little comfort to our client in circumstances where we are not told what instructions he was given, in particular what information he was provided with about our client. If you intend to rely on the fact that the scripts were 'legalled' please bring copies of senior counsel's advice and any related instructions to court on Tuesday, as we will be calling for those documents.

We note that in paragraph 4 of your letter you express the view that the material in the television series will not, when published, convey (or even be capable of conveying) any of the imputations arising out of the book. We further note that you carefully fail to provide an assurance that no defamatory imputation is conveyed at all about our client.

Further, in paragraph 5 of your letter, you dismiss as erroneous the proposition, which is based on a very reasonable assumption (see chapter 3 of the book), that the television series constitutes a mere replication of the book.

Whilst we accept that it is unlikely to be a mere replication of the book, our client is nevertheless concerned that part or parts may be repeated in the television series, which would have the effect of conveying some if not all of the defamatory meanings or other (potentially worse) defamatory meanings. Of greatest concern is the direct relationship between the book and the television series, said connection which, with respect, can hardly be denied by your client.

Please let us know by midday on Friday 26 February 2010 whether any part [of] the television series refers to or depicts our client in any way and if so, please provide a copy of that part or a transcript of it. In the alternative, if our client is not depicted in the television series your undertaking to this effect will be acceptable." 79 Finally, the solicitor for the plaintiff wrote to the solicitor for the first defendant on 24 February 2010. Part of that letter is as follows: "We refer to your letter dated 18 February 2010.

In answer to paragraph 2 of your letter - the DVDs and/or scripts have been published. They have been published by Screentime to your client and have been published by your client to persons (including third party contractors) working on the project, persons engaged to prepare advertising material, persons engaged to copy the material, including the scripts and perhaps even persons who are asked to critique the material for review. In any event, Rule 5.3 UCPR only requires our client to demonstrate that she ' may be entitled to make a claim for relief from the court ' against your client.

Similarly your assertions in paragraph 3 of your letter proceed on a misunderstanding of the relevant provision. If the television series defames our client, and it is about to be broadcast to millions of viewers, she ' may be entitled' to an interlocutory injunction.

Further, your assertion that 'any defamatory imputations which may be conveyed against any person identified in the program, are substantially true and will be defended on that basis' is an allegation that defamatory and therefore derogatory meanings about our client in the television series are true. That assertion will be relied on as aggravation in any proceedings that are commenced by Ms Hatfield against your client in relation to this television series." Evidence from the third defendant 80 The solicitor for the third defendant swore an affidavit directed toward proving that the series was not based on the book. As will be apparent, the suggestion that it is, or the fear that it might be, figures prominently in the correspondence set forth earlier. The evidence is given upon information and belief as follows: "3. I am informed by Greg Haddrick [one of three executive producers and one of four writers of the screenplays for the series] and believe that there were three writers of the screenplays (or scripts) for the series apart from him, namely: Felicity Packard, Kris Mrksa and Peter Gawler (the last of whom is also one of the two producers of the series).

Greg Haddrick informs me and I believe that in his work as a writer for and executive producer of the series he did not utilise the book (or drafts of it) and that he has not read any part of the book. He also informs me and I believe that nothing he wrote for the series was based on any information supplied by Mr Rule or Mr Silvester in any form and that he did not ever consult Mr Rule and/or Mr Silvester about any fact concerning anyone depicted in the series.

I am informed by Felicity Packard and believe that nothing she wrote in her screenplays was based in any way on the book and that she did not utilise any information (written or oral) from Andrew Rule and/or John Silvester (either in the book or otherwise) in her writing of the screenplays for the series. I am also informed by Ms Packard and believe that she saw a copy of the book for the first time in early 2010 and that by then her writing for the series was complete.

I am informed by Kris Mrska and believe that he only became aware of the existence of the book in February 2010 and that that was after he had completed his work writing for the series. I am also informed by him and believe that he has not utilised the book or any information from Mr Silvester and/or Mr Rule in either researching or writing for the series.

I am informed by Peter Gawler and believe that in his work writing for and co-producing the series he did not use the book or any information from Mr Rule and/or Mr Silvester. I am also informed by him and believe that the first time that he saw a copy of the book was in late January 2010 and that by then both the writing for and shooting of the series was complete.

I am informed by Greg Haddrick and believe that the person depicted on the front cover of the book is not an actor or other person appearing in the series or otherwise connected with the series." 81 The affidavit also annexed a copy of an agreement, dated 15 July 2009, between the third defendant and two other companies, described as "the owners", although what they are supposed to own is not specified. The agreement recites, among other things, that the third defendant has agreed that Mr Silvester and Mr Rule, referred to as "the authors", may write what is referred to as "a tie in book" in relation to the UBIII series, referred to as the UBIII book. 82 Clauses 2.1 and 2.2 of the agreement are as follows: "2. TIE IN EDITION OF THE UBIII SERIES

2.1 Screentime agrees that the Authors may write a tie in edition of an Underbelly book in relation to the UBIII Series. For the avoidance of doubt, the Authors shall undertake their own research in writing the UBIII Book and Screentime shall not provide them with any research notes and/or scripts. The Authors agree that they will make it clear to anyone from whom they are obtaining information that their UBIII Book is unrelated to the UBIII Series and that they are not obtaining information for/on behalf of Screentime. The Authors shall be solely responsible for the content of their UBIII Book.

2.2 Sreentime shall grant to the Owners/Authors the right to use the title of the UBIII Series in the form of logotype used in the credits of the UBIII Series for the purposes of publication in volume form and shall be given access to photographic and other promotional materials and the right to use such materials in the promotion of the UBIII Book and to consult with promoters and distributors of any such version to mutual advantage. For the avoidance of doubt, the Authors/Owners shall be responsible for organising any clearances necessary in relation to the Authors/Owners use of the photographic and promotional materials in relation to the UBIII Book and its promotion, and any costs involved in such clearances including without limitation any payments to any actors shall be the Authors/Owners sole responsibility. The Authors/Owners warrant to Screentime that they shall provide to Screentime an appropriate credit (in a place and form which has been pre-approved by Screentime in writing at the time) on the cover of the UBIII Book and shall ensure that this credit appears on the cover of each copy of the UBIII Book from first run. The Authors/Owners hereby indemnify an agree to keep indemnified Screentime from and against any breach of this warranty by the Authors/Owners." Plaintiff's submissions 83 Having regard to the applicable principles and the whole of the evidence, the plaintiff made the following submissions. "May be entitled to make a claim for relief" 84 The plaintiff wants to ascertain first whether she has a claim in defamation against any of the defendants and secondly whether she may be entitled to urgent injunctive relief enjoining the first and second defendants from broadcasting such parts of the series that she considers may defame her. 85 The plaintiff contends that the third defendant has already published the series to the other two defendants or one of them. This is said to arise from what is to be found on the third defendant's website. The plaintiff contended that it was plain that the first and second defendants or one of them had published the series to others in preparation for its broadcast. This would include, presumably, television reviewers and promotional organisations producing trailers and advertisements. The plaintiff argued that the third defendant's website listed promotional material or articles about the series indicating that it had been submitted for critical reviews. It would appear that the series has also been reviewed by TV Week magazine. 86 The plaintiff also contended that the book itself is evidence of the overlap with the series. For example: (a) The book and the series have the same title.

(b) The book refers to the series on its cover as "The events that inspired the Screentime Series for the Nine Network".

(d) The lead actor in the series is pictured on the back cover of the book.

(e) The logo for the word Underbelly as it appears on the front of the book is identical to the logo used for the series as follows: (f) Series 1 of Underbelly was also based on a book by the same authors. 87 The plaintiff submitted that despite the evidence from the third defendant's solicitor to the effect that the scriptwriters did not rely on the book, chapter 3 of the book, or parts of it, may be reproduced in the series or may be based on the series or vice versa. The plaintiff emphasises that there is no assertion by any defendant to the effect that the authors of the book did not use the series or its scripts in writing the book. 88 The plaintiff submitted that in any event it is clear that the plaintiff is portrayed in five episodes of the series, including a depiction of her having sexual relations with John Ibrahim. That is an allegation that is also to be found in the book and which the plaintiff denies. Interestingly, the character said to represent the plaintiff in the series is not listed along with other members of the cast that is to be found at the back of the book. 89 The plaintiff relies on the interview with Jessica Tovey apparently given to OK! magazine, extracted above, in which she says in effect that in researching the character of Constable Wendy she was not bound to historical facts. The plaintiff says that this is an admission by the defendants that they have made a decision to depict the plaintiff so that she is historically identifiable but unrestricted by truth. 90 The plaintiff submitted that in these circumstances she may be entitled to make a claim in defamation against the defendants. 91 Moreover, the plaintiff submitted that she had good reason to fear that the defamatory allegations published about her in the book to a relatively small audience will be broadcast to an audience of millions. Depending upon what allegations are made about her in the series, she contended that she may be entitled to an injunction preventing the broadcast of those parts of the series. "Reasonable inquiries" 92 There was no issue in this case that the plaintiff had made reasonable inquiries for the purposes of UCPR 5.3(1)(a). "Sufficient information" 93 The plaintiff contended that in circumstances where she is unsure of the extent to which she is portrayed or referred to in the series she has insufficient information to decide whether or not to commence proceedings against any of the defendants. The fact that she does not know what is said about her means that she is "lacking something reasonably necessary to make a decision whether to institute proceedings" in the sense discussed by White J in Ian Edward Morton v Nylex Ltd. The plaintiff needs to know what the defamatory "matter" is before she can sue on it: see s 4 and s 7 of the Defamation Act 2005. 94 Furthermore, UCPR 14.30(2) and 15.19(1) require the plaintiff to identify, in any pleading alleging defamation: (a) particulars of any publication on which she relies to establish the cause of action, sufficient to enable the publication to be identified;

(c) particulars of the part or parts of the matter complained of relied on by her in support of each pleaded imputation. 95 The plaintiff will also be required to file and serve with a statement of claim seeking relief in relation to the publication of defamatory matter a typescript, with numbered lines, of the text of the original publication: r 15.19(2)(b) and (3). The plaintiff submitted that despite being aware that she is depicted in five episodes of the series, she does not have enough information to determine which of those episodes, if any, carry imputations about her. Having regard as well to the requirement that regard must be had to what the ordinary reasonable viewer would see, which in this case means the entire program or relevant episodes, the plaintiff says that she is not in a position to formulate the imputations upon which she will rely until she sees them. 96 Finally, the plaintiff submitted that without the entire "matter", she is unable to obtain advice on the strength of potential defences such as contextual truth (s 26) and honest opinion (s 31) which require consideration of the "matter" as a whole and in context. 97 With respect to the second limb of the plaintiff's application, she accepted that the power to grant interlocutory injunctions in defamation cases will be exercised with great caution, and only in very clear cases: Church of Scientology of California Incorporated v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344 at 349. See also Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007] NSWSC 555. The Court's power to grant an interlocutory injunction is subject to the special rule which requires the court to balance the defendant's right to free speech against the plaintiff's right to protect her reputation. Free discussion of matters of public concern is also to be taken into account: Chappell v TCN Channel Nine Pty Ltd 14 (1988) NSWLR 153 at 163-4. See also Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57. 98 The plaintiff submitted that the content of the series would be unlikely to fall within the category of "public interest" and that the allegations that the defendants intend to publish are certain to be sensationalist and serious in nature. Accordingly, the plaintiff "may be entitled to make a claim for relief" or, in other words, such a claim against one or more of the defendants is "conceivable". Consideration 99 The plaintiff's case has been argued in two categories. I will maintain that distinction. The claim in defamation 100 There can be no basis for a contention that the plaintiff "may be entitled to make a claim" unless she can establish that the defamatory material of which she complains has been published. The defendants emphasised, and the plaintiff acknowledged, that the expression "may be entitled" was a reference to the state of affairs as they existed at the time that the application was made. It did not mean, "may become entitled" in the future if certain events were to occur. In these circumstances the plaintiff accepted, as she must, that a right to sue any of the defendants for defamation is co-extensive with her ability to establish at least publication of material that is said to carry the defamatory imputations for which she contends. The series has not on any view been published in the sense of being broadcast on television in the way that everyone anticipates and understands will occur at some time soon. Whenever that is actually supposed to happen, and the evidence is effectively silent on the precise dates, it has not happened yet. 101 The plaintiff therefore contends that there must have been, or at least probably has been, a limited publication either between or among the defendants, or possibly by one or some of the defendants to third parties in anticipation of the series being broadcast. The difficulty with that submission is that there is a wealth of speculation to support it but no evidence that it is so as a fact. For example, it does not seem to me to be established or to follow that the series has, or one or some of its episodes have, been published to magazines that have printed what purport to be reviews of the series. For all the plaintiff knows, such articles, like the ones that appear in OK! magazine or TV Week, may be in the form of copy written by the defendants or one of them, or derived or extracted from such material. It is not unlikely that the promotional arms of the respective defendants may have provided what amounts to a written outline or summary, or whatever is the industry description of such a document, upon the understanding, or with the expectation, that some of it would be reproduced in publications, necessarily of the defendants' choice, in advance of the screening and as part of the promotion and publicity for it. The fact that such material is described as a "review" does not by any means necessarily establish that what ultimately appears in the relevant publication is the product of an independent critical analysis of all or some of the episodes in the series that have been provided to the putative reviewer for that purpose. 102 There is also no satisfactory evidence that there has been a relevant publication of the series or any part of it by one defendant to any other defendant. It may be that some inference that this has occurred arises in a general sense, but this is again no more than speculation. The copies of the episodes of the series may, for all anyone apart from the defendants knows, be subject to some arrangement whereby the third defendant does not part with possession of the recordings that the first defendant is due to broadcast until some date closer to the screening time, which date has not yet arrived. There may be security reasons for such an arrangement. As unusual or as unlikely as such an arrangement may appear, it is no more or less probable than the plaintiff's as yet unproven contention that a publication between or among the defendants must have occurred. 103 The plaintiff to a considerable extent emphasised the defendants' disinclination affirmatively to state that the series did not refer to or depict her or did not do so in a way that may give rise to an allegation that the series when broadcast will defame her. This was allegedly seen in the defendants' refusal either to provide undertakings that the plaintiff is not referred to or depicted or in their refusal to deny that she is. In the case of the first defendant, this argument is probably not even available when one has regard to the terms of the denials contained in the 9 February 2010 letter written by its corporate counsel, extracted at [74]. However, the plaintiff bears the onus of establishing that there has been a publication of and concerning the plaintiff. The defendants are entitled to require the plaintiff to establish that fact. I am not satisfied that the evidence upon which the plaintiff relies has gone this far. No adverse inference arises against the defendants for their failure actively to engage in this debate. 104 Adopting the terminology favoured by White J, it appears to me that the plaintiff is doing no more than asserting an entitlement to sue or that she has a case. She does this by reference to what she contends the series is going to say about her or to the way she anticipates it will portray or depict her, but in my view she does so in the absence of a reasonable cause to believe that she may have a right of action against the defendants for defamation resting on some recognised legal ground. That at the very least necessitates proof of publication of defamatory material. That does not appear to me to have occurred. The plaintiff is not in my view without sufficient information to decide whether or not to commence proceedings against the defendants. She is simply unable to determine, and therefore remains uncertain about, whether or not she really has a cause of action. I accept that the plaintiff is not required to establish, for the purposes of the rule, that she has a prima facie case. 105 It is hardly controversial that the plaintiff will be, or is at the very least likely to be, depicted or portrayed in the series as a constable of police played by the actor Jessica Tovey. Whether or not this depiction or portrayal is sympathetic or unsympathetic, or is or is not arguably defamatory of her, is not yet apparent. The plaintiff places some emphasis upon the suggestion that the actor who plays her said, when interviewed, that she was not bound to historical fact, or words to that effect. Without elaborating upon the proposition too specifically, such a statement is potentially as consistent with a favourable and unactionable depiction or portrayal of the plaintiff as it is with a defamatory one. Having regard to the fact that all of the relevant episodes and the series will have to be considered from the position of the ordinary reasonable viewer in context, no preliminary view can be formed about the potentially tortious nature of what is broadcast until that occurs. 106 Moreover, it does not seem to me that the procedural or rule-driven concerns expressed by the plaintiff are in anyway supportive of the present application. Requirements such as those in UCPR 14.30(2) and 15.19(1), (2) and (3) apply to all cases of the type the plaintiff proposes, in the greatest majority of which preliminary discovery is not seen to be a necessary precondition. I accept, however, that the existence of potential defences is a legitimate matter for consideration in favour of making an order in an appropriate case. The interlocutory injunction to restrain publication 107 The second category under which the plaintiff seeks relief to my mind emphasises the major problem that confronts her present application. This arises from a consideration of the words in r 5.3(1)(a) "is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant". It is critical for present purposes to understand that "proceedings" in this context is not a reference to the plaintiff's prospective claim in damages against the defendants for defamation. Once the series is broadcast she will have all that she requires for the purpose of deciding whether or not to commence proceedings for that cause of action. What the expression refers to in the present context is the plaintiff's decision whether or not to commence proceedings against the defendants for an injunction to restrain the broadcast in the first place. That is the framework within which it becomes necessary to consider whether it "appears to the Court that the plaintiff may be entitled to make a claim for relief from the court" against the defendants. This brings forward the requirement to assess the strength or otherwise of such a case in order to determine whether or not the plaintiff "may be entitled to make a claim for relief". 108 Other than in a hypothetical sense it does not appear to me that, having regard to the well-known authorities on this issue, the plaintiff may be entitled to an injunction to restrain the series' broadcast. First, for the reasons already discussed, the plaintiff has not yet established that she has an arguable case. That may change once the series goes to air but is incapable of determination at present. 109 Secondly, there is no evidence to suggest that damages would not be an adequate remedy. Counsel for the plaintiff submitted that the statutory limitation upon damages is such that the amount of monetary compensation that the plaintiff could recover would not be adequate to salve her hurt feelings or make up for the damage to her reputation that she anticipates the broadcast will cause. However, this is to misconceive the nature of the inquiry about the adequacy or otherwise of damages in this respect, which is directed to the availability of alternative relief, not to the sufficiency of an award of damages. The plaintiff was unable to point to any circumstance or event that would fall in following the anticipated broadcast that could not be accommodated by an award of damages, independently of whether or not the plaintiff felt satisfied with the amount of those damages. 110 Thirdly, there is no prejudice to her that the plaintiff can identify that outweighs the prejudice that may attend a restraint of the proposed broadcast in whole or in part. There is little evidence from the defendants about the prejudice that they may suffer if their series were to be taken off the air or if parts of it were enjoined from publication. However, experience in applications of this type, and the evident stage that has been reached by the defendants in preparation for the series to be screened, strongly suggests that considerable disruption will attend the need to reschedule or reprogramme it, if that were to be required. The balance of convenience clearly favours permitting the proposed broadcast to proceed. 111 More fundamentally, the authorities dealing with the restraint of an apprehended defamation are clear. In Naoum v Dannawi [2009] NSWCA 253, McColl JA said this at [32]: "[32] The application as it proceeded before the primary judge and in this Court, was fundamentally misconceived. The applicant sought final injunctive relief without, apparently, adverting to the necessity that before such relief could be granted (and leaving to one side for present purposes the exceptionally cautious approach courts adopt to granting injunctive relief in the defamation context where the right of free speech is emphasised), he would have to establish an actionable defamation at a final hearing. In other words he had to establish the publication by the respondent of defamatory matter (s 7(2), Defamation Act 2005 (NSW)) to which the respondent had no defence: Bonnard v Perryman [1891] 2 Ch 269 (at 284) per Lord Coleridge CJ, (Lord Esher MR and Lindley, Bowen and Lopes LJJ agreeing); Church of Scientology v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344 (at 351) per Hunt J; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 (at 158 - 159, 163 - 164) per Hunt J; O'Neill (at [19]) per Gleeson CJ and Crennan J; (at [80] - [82]) per Gummow and Hayne JJ; (at [107]) per Kirby J." 112 I have already indicated that the plaintiff has not established publication. However, even putting that issue to one side, or alternatively assuming publication will occur, there is yet no evidence to establish an actionable defamation at a final hearing. The content of the alleged defamatory matter remains illusory. 113 In one sense, with appropriate allowance for the different factual circumstances, the Court is in a similar position to that described by Maxwell J in Harper v Whitby [1978] 1 NSWLR 35 at 37 where his Honour made the following remarks: "I am left to speculate, and this is no criticism of the plaintiff or her legal advisers, as to the precise nature or format of the programme proposed to be telecast on the programme 'A Current Affair'. There is no evidence that the programme has been completed, or is in what I might call final form. I have no evidence as to whether it will be a balanced programme. By this I mean that I have no evidence to suggest either way that it will merely take the form of accusations made against the plaintiff with no counter views or statements by her or on her behalf. Nor is there any evidence as to when any such programme, if it is completed, will be telecast." (Emphasis added) 114 The opinions expressed by Gleeson CJ and Crennan J in O'Neill at [18] and [19] also bear repetition in this case: "[18] Lord Coleridge CJ's conclusion was that 'it is wiser in this case, as it generally and in all but exceptional cases must be, to abstain from interference until the trial'. That form of expression does not deny the existence of a discretion. Inflexibility is not the hallmark of a jurisdiction that is to be exercised on the basis of justice and convenience. Formulations of principle which, for purposes of legal analysis, gather together considerations which must be taken into account may appear rigid if the ultimate foundation for the exercise of the jurisdiction is overlooked. Nevertheless, so long as that misunderstanding is avoided, there are to be found, in many Australian decisions, useful reminders of the principles which guide the exercise of discretion in this area. One of the best known statements of principle is that of Walsh J, before he became a member of this Court, in Stocker v McElhinney (No 2) . After referring to the 5th edition of Gatley on Libel and Slander , and citing Bonnard v Perryman , he said:

'(1) Although it was one time suggested that there was no power in the court, under provisions similar to those contained in [the Act governing procedure in the Supreme Court of New South Wales] to grant an interlocutory injunction, in cases of defamation, it is settled that the power exists in such cases.

(2) In such cases, the power is exercised with great caution, and only in very clear cases.

(3) If there is any real room for debate as to whether the statements complained of are defamatory , the injunction will be refused. Indeed, it is only where on this point, the position is so clear that, in the judge's view a subsequent finding by a jury to the contrary would be set aside as unreasonable, that the injunction will go.

(4) If, on the evidence before the judge, there is any real ground for supposing that the defendant may succeed upon any such ground as privilege, or of truth and public benefit, or even that the plaintiff if successful, will recover nominal damages only, the injunction will be refused.'

[19] The principles were discussed, for example, in Chappell v TCN Channel Nine Pty Ltd (a decision referred to by Crawford J in a passage quoted above), National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd, and Jakudo Pty Ltd v South Australian Telecasters Ltd. As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be followed. In the context of a defamation case, the application of those organising principles will require particular attention to the considerations which courts have identified as dictating caution. Foremost among those considerations is the public interest in free speech. A further consideration is that, in the defamation context, the outcome of a trial is especially likely to turn upon issues that are, by hypothesis, unresolved. Where one such issue is justification, it is commonly an issue for jury decision. In addition, the plaintiff's general character may be found to be such that, even if the publication is defamatory, only nominal damages will be awarded." (Emphasis added) 115 Similarly, Gummow and Hayne JJ said this at [78] - [83]: "[78] The second or 'flexible' view of the exercise of the interlocutory injunction power in these cases is exemplified in Chappell v TCN Channel Nine Pty Ltd and in cases following and applying it. These cases rightly stress the application in this field of the general principles exemplified in Beecham . However, they give rise to two difficulties.

[79] The first difficulty is that the cases which advocate 'flexibility' tend to give insufficient weight to the range of significant rights asserted on applications to restrain quia timet defamatory publications. A plaintiff asserts interests in character and reputation, while the defendant may assert what are special considerations derived from 17th and 18th century events which have been regarded in Britain as part of its constitutional history.

[80] Two special (and related) considerations which underpinned the denial of jurisdiction in the Court of Chancery to enjoin publication of defamatory matter were identified by Lord Cottenham LC in Fleming v Newton . He asked:

'how the exercise of such a jurisdiction can be reconciled with the trial of matters of libel and defamation by juries under the 55 Geo III, c 42, or indeed with the liberty of the press. That act appoints a jury as the proper tribunal for trial of injuries to the person by libel or defamation; and the liberty of the press consists in the unrestricted right of publishing, subject to the responsibilities attached to the publication of libels, public or private.'

The reference to 'the liberty of the press' reflected the statement by Lord Mansfield in R v Shipley that '[t]he liberty of the press consists in printing without any previous licence, subject to the consequences of law'. The statutory system of press licensing in England had lapsed in 1695 and 13 proposals over the next decade for its revival had come to nothing. (The unsuccessful attempts by Governor Darling to institute a press licensing system are a landmark in the constitutional history of New South Wales.)

[81] There remained available to the Executive Government in England the power to prosecute the offences of criminal and seditious libel and this then led to great controversy as to the respective functions of judge and jury in such trials. The dispute culminated at the end of the 18th century in the passage of Fox's Libel Act 1792 (UK), and its subsequent judicial adoption for civil trials, to which reference has been made earlier in these reasons.

[82] The remarks by Lord Cottenham LC in Fleming v Newton manifest the reluctance by the courts of equity to participate in any indirect reinstatement of a licensing system by a method of prior restraint by injunctive order. The injunction (interlocutory or final) was a prior restraint and the decision was that of a judge alone. The jurisdictional objection was to disappear later in the 19th century, but distaste for prior restraint and respect for the role of the jury remained significant for the administration of the interlocutory injunction. Section 21 of the 2005 Act confers upon each party in defamation proceedings in the Supreme Court an election for jury trial, subject to the power of the Supreme Court to order otherwise. (However, s 22(3) of the 2005 Act reserves to the judicial officer the determination of the amount of any damages and unresolved issues of law and fact relating to that determination.)

[83] The second difficulty with the 'flexible' approach is that it leads too readily to an assumption that all that is involved here is the exercise of an unbounded discretion, which thereafter is insusceptible of appellate interference. The course of the present litigation demonstrates that hazard." 116 It is not possible to characterise this case as clear, and certainly not possible to characterise it as very clear. Not only is there in the present case "real room for debate as to whether the statements complained of are defamatory", there is real room for debate about whether or not there are yet any statements to complain of at all. The actual form of the publication can be anticipated with some confidence but its content is not so easily predicted. This is not, to adopt the words of Lord Coleridge CJ, an "exceptional case". It would in my opinion be an error in the exercise of discretion to enjoin a publication that is soon to occur when not only might minds differ concerning the defamatory content of the broadcast, but when no two minds could be reasonably satisfied that they were in fact engaged in considering the same subject matter, or that there was even some subject matter to consider. Respect for the role of the ultimate tribunal of fact should not be compromised or subverted by too ready an acceptance of allegedly urgent but not very clear or exceptional pleas for potentially disruptive injunctive relief. Conclusion 117 It does not appear to me at present that the plaintiff may be entitled either to make a claim for damages for defamation against any of the defendants or that she may be entitled to make a claim for interlocutory relief to enjoin them from publication of the series. Orders 118 Having regard to the evidence before me on this application it follows in my opinion that the plaintiff's summons should be dismissed. At the request of the plaintiff I will make no order as to costs until the parties have been given a further opportunity to make submissions on that issue.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Hatfield v TCN Channel Nine Pty Ltd [2010] NSWSC 161

Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Bayeh v New South Wales (1999) 108 A Crim R 364 Chappell v TCN Channel Nine Pty Ltd 14 (1988) NSWLR 153 Church of Scientology of California Incorporated v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344 Harper v Whitby [1978] 1 NSWLR 35 Hartmann v Commissioner of Police (1997) 91 A Crim R 141 CASES CITED : Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007] NSWSC 555 Hood (1997) 91 A Crim R 526 Ian Edward Morton v Nylex Ltd [2007] NSWSC 562 Naoum v Dannawi [2009] NSWCA 253 R v Bayeh [1999] NSWCCA 82 St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 Standard Chartered Bank v Antico (1993) 36 NSWLR 87 The New South Wales Solicitors Mutual Indemnity Fund v The Hancock Family Memorial Foundation Ltd [No 2] [2009] WASCA 146

(4) …" 14 White J had cause to consider this provision in Ian Edward Morton v Nylex Ltd [2007] NSWSC 562. At [25] and [27] his Honour said this: "[25] The first of the requirements in r 5.3(1)(a) is that it appear to the Court that the applicant may be entitled to make a claim for relief against the prospective defendant. In order for it to 'appear' to the Court that the applicant 'may be entitled' to make a claim for relief, it is not necessary for the applicant to show a prima facie or pleadable case. On the other hand, the mere assertion of a case is insufficient. It will be sufficient if there is reasonable cause to believe that the applicant may have a right of action against the respondent resting on some recognised legal ground ( Panasonic Australia Pty Ltd v Ngage Pty Ltd (2006) 69 IPR 595 per Young CJ in Eq at 589 [20] and 599 [27]).

[27] Rule 5.3 does not authorise the making of an order for preliminary discovery to enable a plaintiff to decide whether to sue third parties. The order can only be made against a prospective defendant where it appears that the applicant may be entitled to make a claim against that person." 15 His Honour continued at [33] in these terms: "[33] The onus is on the plaintiffs to make it appear to the Court that, having made reasonable inquiries, they are unable to obtain sufficient information to decide whether or not to commence proceedings against Nylex. The third requirement of r 5.3(1)(a) requires an objective assessment of the information already possessed by the plaintiffs to determine whether that information is sufficient for such a decision to be made. The question is whether the applicant has insufficient information to be able to decide whether to institute proceedings; not merely to establish a cause of action. Hence, an applicant may be entitled to preliminary discovery of documents relevant to available defences, or the extent of apprehended breaches, or the likely quantum of damages, as well as of documents which may establish whether there is a cause of action. However, unless the applicant is lacking something reasonably necessary to make a decision whether to institute proceedings, he or she is not entitled to preliminary discovery. An applicant must disclose what information he or she already has relevant to making such a decision, and identify what information is lacking. Preliminary discovery cannot be used to build up a case which an applicant has already decided, or could decide, to bring ( Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (Lindgren J, Federal Court of Australia, 24 May 1996, unreported); St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at 154 [26]; Glencore International AG v Selwyn Mines Ltd (recs and mgrs apptd) (2005) 223 ALR 238 at 241 [15]; Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591 at [15]-[19], [25])." 16 With regard to the equivalent Federal Court Rules, Hely J in St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 at [26] summarised the principles as follows: "[26] The following propositions emerge from the authorities in which the proper application of Order 15A r 6 has been considered by judges of this Court:

(a) the Rule is to be beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the Court, exercised in the particular circumstances of each case: Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728 at 733; Minister for Health & Aged Care v Harrington Associates Ltd [1999] FCA 549 at [27];

(b) each of the elements prescribed in sub-paragraphs (a), (b) and (c) of the rule must be established: Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1 at [38]. Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves: Airservices Australia v Transfield Pty Ltd [1999] FCA 886 at [5];

(c) the test for determining whether the applicant has 'reasonable cause to believe', as required by sub-paragraph (a), is an objective one: Hooper at [39]; Malouf v Malouf [1999] FCA 710 at [16]; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at [24]; Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 391; BC 9602085 at 23. Further, the words 'or may have' cannot be ignored. The applicant does not have to make out a prima facie case: Quanta Software at [24]; Paxus Services at 733;

(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];

(h) it is no answer to an application under the rule to say that the proceeding is in the nature of a 'fishing expedition': Paxus Services at 733. Indeed Order 15A r 6 'expressly contemplates' what once might have been castigated as 'fishing': Bailey v Beagle Management Pty Ltd [2001] FCA 60 ; (2001) 105 FCR 136 at [27]. As Burchett J commented in Paxus Services, the rule is (at 733):

'... designed to enable an applicant, in a situation where his proof can rise no higher than the level the rule describes, to ascertain whether he has a case against the prospective respondent ...'." 17 My attention was also drawn by the third defendant to what was said by McLure JA in The New South Wales Solicitors Mutual Indemnity Fund v The Hancock Family Memorial Foundation Ltd [No 2] [2009] WASCA 146 at [10] in these terms: "[10] Order 26A r 4 has been the subject of appellate consideration in this court on a number of occasions. In McCarthy v Dolpag Pty Ltd [2000] WASCA 106, Anderson and Scott JJ said of O 26A r 4:

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