the appropriate order
9 Order 15A r 6 provides:
'Where -
(a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained;
(b) after making all reasonable inquiries, the applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief; and
(c) there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist in making the decision -
the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c).'
10 The respondents contend that the applicant did not make 'all reasonable inquiries' within the meaning of O 15A r 6(b) before instituting this proceeding. They draw attention to the short notice (approximately three working days) that they were given of the applicant's intention to apply to the Court under O 15A r 6 if the respondents did not provide them with the extensive discovery requested. The applicant, on the other hand, contends that there were circumstances of urgency which required it to act with the speed that it did. I am not satisfied that the applicant acted unreasonably in instituting this proceeding within a few days of making its demands for discovery by the respondents. I am satisfied that there were circumstances that suggested that, if it were to institute a proceeding against the respondents, it should do so promptly.
11 However, in my view, the pre‑application demand that the applicant made on the respondents was unreasonably wide. The applicant initially sought discovery of documents in 14 broadly expressed categories. These categories were not qualified so as to ensure that the documents sought were relevant to the two potential causes of action on which the applicant ultimately relied. As is mentioned above, the applicant subsequently acknowledged that its claim for discovery could be expressed in terms of two categories of documents only. The respondents thereafter consented to give discovery of the document in the first of these two categories.
12 By the time of the hearing the applicants had filed three separately sworn affidavits by Wayne Douglas Smith ('Mr Smith'), the General Manager - Property of Hoyts Cinemas Limited. Mr Smith's cross‑examination was completed before the application was dismissed by consent. As is mentioned above, the premature termination of the hearing meant that I did not receive the benefit of full submissions from counsel concerning Mr Smith's evidence. I therefore consider it inappropriate to reach a concluded view as to Mr Smith's credibility. However, during the course of his cross‑examination Mr Smith acknowledged, or his answers demonstrated, significant problems with his affidavit evidence. Mr Smith's evidence was the only evidence relied on by the applicant in support of its application.
13 In my view it is not unfair to proceed on the basis that the agreement reached between the senior counsel for the applicant and the senior counsel for the first respondent reflected a recognition by the applicant that it would probably be unable to justify its demand that the respondents make discovery of all of the documents identified in paragraphs 10, 12, 13 and 14 of the schedule to the application. In the circumstances I consider it appropriate to proceed on the basis that the applicant acted unreasonably in maintaining that demand through to the time of hearing. It seems to me to be more likely than not that had the applicant made an appropriately limited demand there would have been no need for the matter to proceed to a hearing.
14 In my view, the appropriate outcome so far as the costs of this matter are concerned is that each party should bear its own costs of the application up to and including the costs of the directions hearing held on 5 August 2003. Although the demand for discovery made by the applicant was, I consider, unreasonably wide, I do not conclude that it was unreasonable of the applicant to institute this proceeding. Nor do I conclude that it was unreasonable of the respondents to defend it. However, following the institution of the proceeding, significant discovery was agreed to be provided to the applicant by the respondents. As is mentioned above, I consider that it was thereafter unreasonable of the applicant to continue to press its remaining claims as formulated in the schedule to the application. I conclude that it was reasonable for the respondents to continue to defend those claims.
15 In my view, it is likely that a reasonable, limited request for documents within the second broad category of documents would not have been rebuffed had it been made at or about the time of the direction hearing held on 5 August 2003. For this reason I conclude that the applicant should pay the respondents' cost of the application as taxed to the extent that such costs were incurred after the directions hearing of 5 August 2003. It is for this reason unnecessary for me to give consideration to the appropriateness, either generally or in the particular circumstances of this application, of an order that might make the costs of an O 15A r 6 application dependent upon the institution of a substantive proceeding between the parties or even the eventual outcome of any such proceeding (see C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864 per Gyles J at [50]).
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.