Lahoud v Hooper

The Anytime Gym premises

1. On 3 October 2012 Castle Constructions lodged a development application for Lots 34 and 38 (the Property) to be used as a 24-hour gym. Before the application was lodged a group of residents at Castle Garden objected to the Property being used as a gym and lobbied other residents to persuade them to oppose it. However, the Council's planning officers recommended that the development application be approved.
2. On 17 December 2012 the Council held a meeting at which the development application was considered. Councillor Hooper, the defendant, moved a motion, which was carried, that the development application be refused.
3. The plaintiff challenged the refusal in the Land and Environment Court. On 15 February 2013 that Court approved the development application, subject to a condition which permitted the franchisees to operate their gym 24-hours a day on a trial basis for 12 months. It was a term of the approval that, within one month of the expiry of the 12-month period, the plaintiff would lodge a s 96 (of the EPAA) application (for modification of development consent) in respect of the gym to permit it to operate on a 24-hour basis. Following the approval, Castle Constructions leased the Property to franchisees, Zed Zeynoun and Zaher Hamdan, who conduct a gym under the brand "Anytime Fitness".
4. As at February 2013 the plaintiff lived in Castle Garden with his family. On the afternoon of 15 February 2013 (the day the decision of the Land and Environment Court was handed down), a poster was put up in the lift of the building, which read: ALL THANKS TO VICTOR LAHOUD THE SELFISH BULLY WHO COULDN'T CARE LESS ABOUT THE CASTLE GARDEN RESIDENTS
5. The plaintiff removed the poster.
6. The s 96 application, which was required to be advertised, was lodged on 19 May 2014. During the notification period (23 May 2014 to 6 June 2014) the plaintiff did not become aware, through inspecting the Council's file or otherwise, of any opposition to the application. However, in early July 2014 he became aware of a submission lodged by a Mary Johnstone who opposed the application. It is not necessary to set out the terms of the plaintiff's response to the Council about the objection. It is sufficient to say that he was trenchant in his criticism of Ms Johnstone and accused her, among other things, of making "wild and unfounded allegations".
7. On about 9 September 2014 the plaintiff received a letter from the Council enclosing a report prepared by two Council employees, Ms Leung and Mr Arnott (who together constituted the Ward Inspection Committee), which notified the plaintiff of his right, and the right of the Ward Councillors, to request a meeting before the decision was made whether to approve the plaintiff's s 96 application. The authors of the report made mention of the three submissions which had been made by persons occupying units in Castle Garden and summarised their objections. The Ward Inspection Committee recommended that the s 96 application be approved.
8. On 24 October 2014 a meeting was held on the gym premises at which the two members of the Ward Committee, Councillors Hooper and Hill, who were responsible for deciding whether to grant consent to the s 96 application, were present. The gym manager, Daniel Carr, who was employed by the franchisees, was available to answer questions. The plaintiff recognized at least some of the residents from Castle Garden who were among those dozen or more people who attended the meeting.
9. At the conclusion of the meeting on 24 October 2014, the Ward Committee announced that it did not propose to approve the consent. The assembled gathering was told that it would be up to Greg Woodhams, the Environmental Services Director, to decide whether the application would be considered by a full Council meeting. If he concurred with the decision of the Ward Councillors, the decision would stand; if not, the matter would be referred for a full Council meeting the following Monday.
10. Later that afternoon, Ms Leung rang the plaintiff to tell him that Mr Woodhams, who was also the Council's Acting General Manager, disagreed with the decision of the Ward Councillors and that, as a consequence, the application would be referred to a full Council meeting on the following Monday night. The plaintiff accepted that, at this time, the outcome of the s 96 application was "quite uncertain".

The email of 25 October 2014

1. On 25 October 2014, the day following the meeting, Councillor Hooper sent an email to Mr Woodhams, Mr Arnott and other council members. The email said: "Dear AGM [Acting General Manager], Regarding the unanimous vote by Councillors to refuse the 24 hour gym, it has been reported that the repercussions have started. A firehose was turned on early this morning and flooded the 2nd and 1st floors. Now the lift has been interfered with to disrupt the residents - many of whom are aged and rely on the lift. Would you please have this investigated by our Rangers as Council is a unit owner and this 24 hour gym S96 is coming before Council this Monday night."
2. The email was then forwarded to twelve others. One of the recipients responded to the others by saying: "I hope Councillor Hooper has hard evidence to support his statement before making such accusations against a local business."
3. In cross-examination the plaintiff accepted that it would be "absurd" to suggest that he had acted in the manner referred to in the email, not only because Castle Constructions owned several units in Castle Garden but also because he would not wish to spark controversy in the building when his application was still pending.
4. On 26 October 2014 the plaintiff obtained a copy of the email. He instructed his solicitors to write to Councillor Hooper, which they did on 27 October 2014, in terms which included the following: ". . . It is our view that the email contains an imputation that our clients were involved in the incidents which are alleged to have occurred on Saturday. Any such imputation is denied. Your email implies that retributive behaviour has occurred because of the meeting of Ward Councillors on Friday which refused the application of our clients for the 24 hour gym. Please produce to us, as a matter of urgency, the evidence you relied upon to make the allegations contained in your email. You might also want to seek advice about whether this letter raises any non-pecuniary interests under clause 63 of the Willoughby City Council Code of Meeting Practice."
5. Before the Council meeting on Monday 27 October 2014, Councillor Hooper asked the plaintiff how he got a copy of the email. He told him that he obtained it from a few different sources. When Councillor Hooper remarked that the plaintiff was not named in the email, the plaintiff said: "Come on. Any person reading that email will know it is referring to an applicant who is angry about the refusal of the application and that is me."
6. On the evening of 27 October 2014 the Full Council adjourned consideration of the application with respect to the Property to its next meeting on 10 November 2014.
7. On 3 November 2014 the plaintiff's solicitors wrote to Councillor Hooper and alleged that the email was "grossly defamatory" of the plaintiff and constituted an injurious falsehood with respect to Castle Constructions. The solicitors listed seven imputations which they alleged were contained within the email, including that the plaintiff engaged in "criminal and spiteful behavior" by maliciously damaging the first and second floors of the building because of the Council's decision to refuse his application. They classified their letter as a "concerns notice" pursuant to s 14 of the Defamation Act 2005 (NSW) and invited Councillor Hooper to make amends pursuant to s 15 of the Act. The letter also said: "The allegations in the email were made in circumstances where the clear inference is that they were designed to influence the voting of Councillors on the Application, which, if defeated, would have serious consequences for our client and the tenant."
8. Councillor Hooper responded by email of the same day. He rejected the suggestion that the email made any imputations against the plaintiff. He raised his concern that the email had been disseminated beyond its original addressees and sought information as to the means by which the plaintiff had obtained access to the email. He also raised the wider issue of the Council's responsibility to residents in the following terms: "Council and Police are very aware that there are issues of concern amongst the residents/occupiers as to ongoing reports of malicious damage. When complaints are made to Council it is Council's duty to have them investigated. In this respect it is common for complainants to contact, not just one Councillor but often all councillors individually and when one Councillor requests an investigation it is necessary to inform the Councillors that the matter is in hand and a request has been made for an investigation. As I did."
9. By email dated 4 November 2014 Councillor Hooper answered each allegation contained in the plaintiff's solicitor's letter and said, in respect of each, that he neither "made nor makes such an allegation" against the plaintiff.
10. On 10 November 2014 the Council approved the plaintiff's application in respect of the Property, subject to conditions, against which the plaintiff has filed an appeal. which has not yet been determined in the Land and Environment Court.
11. On 15 December 2014 the plaintiff's solicitors wrote to Councillor Hooper to ask who made the report to him concerning the matters in his email and request copies of any such communications that were in writing.

The development at 147 Sailors Bay Road

1. In late 2014 the plaintiff, through another of his companies, lodged a development application in respect of property that included 147 Sailors Bay Road, being the land next to Castle Garden. The development application proposed demolition of existing structures and the construction of a new five-storey, 23-unit mixed use residential / commercial building.

These proceedings

1. The summons was filed on 22 January 2015. Soon after these proceedings were commenced, the plaintiff instructed his solicitors to write to Councillor Hooper and inform him that, having regard to the commencement of these proceedings, he ought not have any involvement in matters to be considered by the Council that concerned the plaintiff, including the outstanding development application for 147 Sailors Bay Road. At the time the plaintiff instructed his solicitors to send the letter, he knew that Councillor Hooper had been opposed to the development at Castle Garden and wanted him to be excluded from the decision whether to grant the development application in respect of 147 Sailors Bay Road.
2. As it happened, in the week prior to the hearing of these proceedings, Councillor Hill informed the plaintiff that the development application for 147 Sailors Bay Road had been approved.

The plaintiff's evidence as to his desire to commence proceedings

1. The plaintiff deposed that he wishes to commence proceedings in defamation against the person or persons who made the report which formed the basis of the email sent by Councillor Hooper. He deposed that he was not the person responsible for causing water damage to the first and second floors of the building.
2. The plaintiff rejected the following propositions put to him in cross-examination: 1. That he did not actually believe that any reasonable person could possibly think that he was responsible for causing damage to the building. 2. That he tends to become upset when anyone objects to an application for development he makes to Council and retaliates in an aggressive way to, or in respect of, any objector. 3. That these proceedings were brought for one or more of the following purposes: 1. to disqualify Councillor Hooper from participating in the decision-making with respect to 147 Sailors Bay Road; and 2. to deter potential objectors from speaking out against the development proposed at 147 Sailors Bay Road. 1. That because the application with respect to 147 Sailors Bay Road had been approved, there was no need for him to continue these proceedings and that, even if successful, he would not commence defamation proceedings because his aim (to quell objection) had been achieved.

The plaintiff's evidence as to his inquiries

1. The plaintiff instructed his solicitors to ask Councillor Hooper to identify his sources. He also deposed that he believed that there were no other inquiries open to him (apart from these proceedings), to find out who made the report to Councillor Hooper that led to the email.
2. The plaintiff admitted in cross-examination that he considered that the person who made the report could only have been one of two or three people, each of whom lived in Castle Garden. He had asked none of the suspects to confirm or deny responsibility for the email; nor had he instructed his solicitors to communicate with any of these people. Nor had he posted any advertisement or other notice in the building with a view to ascertaining the identity of the person, or persons, concerned.

Relevant rules

1. Rule 5.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), relevantly provides: 5.2 Discovery to ascertain prospective defendant's identity or whereabouts (1) This rule applies if it appears to the court that: (a) the applicant, having made reasonable inquiries, is unable to sufficiently ascertain the identity or whereabouts of a person (the person concerned) for the purpose of commencing proceedings against the person, and (b) some person other than the applicant (the other person) may have information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the person concerned. (2) The court may make either or both of the following orders against the other person: (a) an order that the other person attend the court to be examined as to the identity or whereabouts of the person concerned, (b) an order that the other person must give discovery to the applicant of all documents that are or have been in the other person's possession and that relate to the identity or whereabouts of the person concerned.

The plaintiff's submissions

1. Mr Hmelnitsky SC, who appeared with Mr Lewis for the plaintiff, contended that the plaintiff had established that he wants to commence proceedings in defamation against the person concerned. He submitted that there was no basis for concluding other than that the plaintiff's purpose in bringing defamation proceedings would be to protect his reputation.
2. The plaintiff submitted that he had made reasonable inquiries to ascertain the identity of the person concerned. He contended that it would be futile to require him to do anything more than had been done to find out who had provided the information to Councillor Hooper since it was inevitable, or at least probable, that the person concerned would not be prepared to disclose his or her identity to the plaintiff. Mr Hmelnitsky contended that I ought infer from the defendant's refusal to divulge the identity of the person concerned that he or she wanted to remain anonymous.
3. Mr Hmelnitsky submitted that, although the plaintiff did not need to establish a prima facie case in defamation against the person concerned (Stewart v Miller [1979] 2 NSWLR 128 at 139-140 per Sheppard J), the existence of such a case was relevant to the exercise of this Court's discretion whether to grant the relief sought in the summons: Roads and Traffic Authority of New South Wales v Australian National Car Parks [2007] NSWCA 114 at [13] per Mason P. He contended that the cause of action would be complete upon proof that the person concerned published what became the substance of the email, as long as Councillor Hooper knew (as he must have done) that the plaintiff was the natural person behind the s 96 application in respect of the Property and that the application had been rejected by the Ward Committee. He relied on the principle that it is not necessary for a publication to name the plaintiff as long as it could be said to be of and concerning the plaintiff: Steele v Mirror Newspapers [1974] 2 NSWLR 348 at 371 per Samuels JA. He contended that this question is pre-eminently a jury question.
4. The plaintiff relied on the following circumstances: that the poster in the lift identified him as the natural person behind the application; he was the sole director of Castle Construction; he was the real proponent of the s 96 application; and, as an owner of residential units in the building, he had access to the first and second floors.
5. Mr Hmelnitsky also submitted that I could more readily draw inferences against the defendant as he was available to give evidence and had chosen not to do so: Jones v Dunkel (1959) 101 CLR 298.
6. It was also submitted on behalf of the plaintiff that it could not be inferred that there was no forensic disadvantage to him if he were only able to sue the defendant but not the source, since the defence of qualified privilege might defeat his claim against the defendant, but would not necessarily defeat a claim against the source.

The defendant's submissions

1. Mr Elliott, who appeared on behalf of the defendant, submitted that I ought not be satisfied that the plaintiff had made reasonable inquiries, since all that the plaintiff had done was ask the defendant. Mr Elliott contended that "reasonable" in the context means that the plaintiff has to do all that is reasonably necessary to get what he wants, which may include making inquiries that are optimistic in nature, in that they may be unlikely to bear fruit. He submitted that the plaintiff could not be regarded as having made reasonable inquiries when he had not even bothered to ask, whether orally or in writing, the two or three people he suspected of being responsible.
2. Mr Elliott emphasised that the plaintiff's application was only made under UCPR 5.2: namely, for documents that would identify the source, rather than those which would reveal the terms of the communication between the source and Councillor Hooper. Accordingly, he submitted that the only issue was the identity of the source and that therefore there was no relevant Jones v Dunkel inference available against the defendant.
3. It was submitted on behalf of the defendant that UCPR 5.2 required that the plaintiff's desire to bring proceedings be not only subjective, but also "bona fide" and not capricious: Roads and Traffic Authority of New South Wales v Care Park Pty Ltd [2012] NSWCA 35 at [106] per Barrett JA. Mr Elliott submitted that I ought not be satisfied that the plaintiff genuinely wanted to bring defamation proceedings because the chronology demonstrated that the real reason for these proceedings was to sideline Councillor Hooper so that he could not obstruct the development application for 147 Sailors Bay Road.
4. Further, the defendant submitted that there was no arguable defamation claim because no reasonable reader could have understood the email as referring to the plaintiff: Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1252 per Lord Morris. He relied on the circumstance that the plaintiff, through Castle Construction, owned several units in the building and submitted that no rational person would think that someone in the plaintiff's position would want to inflict punishment on tenants on which he relied for rent, particularly when the outcome of the development application was, at the relevant time, up in the air. He submitted that the communication was so ambiguous that it was not reasonably capable of being about the plaintiff.
5. Mr Elliott contended that, in these circumstances, I ought not be satisfied that the plaintiff genuinely wanted to bring defamation proceedings on an objective basis. He also submitted that these matters were germane to the exercise of my discretion to refuse relief.
6. Mr Elliott referred to H & H Security Pty Ltd v Toliopoulos (unreported, 17 May 1995, Levine J) in which an application under the equivalent provision to UCPR 5.2 was refused on discretionary grounds because of the need to protect informants. He drew an analogy between the public interest immunity that protected the identity of informants and the public interest in free flow of information between constituents and a representative body, such as the Council. He referred to the balancing exercise that needed to be undertaken between, on the one hand, the interest in disclosure for the purposes of the proper administration of justice and, on the other hand, the interest in non-disclosure of the identity of informants to preserve the flow of information from such informants.
7. The defendant submitted that it would be wrong to impose a level of care and attention to the wording of communications between constituents and a body such as the Council when it could reasonably be expected that those communicating would be deterred, if they feared defamation action, from passing on information to a Council that would assist it to enforce laws, including, for example, those concerning environmental damage or contamination. He submitted that it was better to allow some slight overstatement of information, or the overlay of a conspiracy theory, than to deter such communications by exposing the sender to defamation proceedings, particularly where, the recipient (the Council) has a duty to investigate, rather than (as in the case of a newspaper) to report to the public at large.
8. Mr Elliott also relied on the circumstance that the plaintiff became aware of the email only because it was leaked to him in violation of the Council's privacy policy. He also submitted that the law of qualified privilege might protect the individual litigant but did not protect the public interest in the free flow of information.

The plaintiff's submissions in reply

1. Mr Hmelnitsky contended that, were I to reject the application on the basis that the plaintiff had not made reasonable inquiries, the net result would be that he would make such inquires, not receive a satisfactory response and that he would be obliged to commence a fresh set of proceedings. He submitted that, in those circumstances, the provisions of the Civil Procedure Act 2005 (NSW) ought operate to incline me to make a decision on the application, notwithstanding a finding that reasonable inquiries had not been made.
2. The plaintiff also submitted that, in circumstances where Councillor Hooper had not given evidence, I ought not infer that the communication came from a concerned constituent.
3. Mr Hmelnitsky submitted that the discretion ought not be exercised against the granting of relief. He contended that there was no evidence that the person concerned was a constituent in the Council area and, accordingly, there was no basis for supposing that the public interest in freedom of communication between constituents and their representative body was applicable.
4. Further, the plaintiff submitted that the so-called "newspaper" rule would apply and the public interest in the free flow of information to journalists has not been allowed to protect those who use those occasions to say what is false and defamatory: Liu v The Age Company [2010] NSWSC 1176 at [54]. He submitted that a constituent would have a complete defence under the law of defamation to communicate with people (such as councillors) who have the reciprocal interest in receiving this kind of information under the law of qualified privilege. Mr Hmelnitsky submitted that if the source communicated to Councillor Hooper on an occasion of qualified privilege and there was no malice, the source would not be liable in defamation. Accordingly, the plaintiff submitted that concerns about the public interest are adequately addressed by the law of defamation and the law of qualified privilege.
5. Mr Hmelnitsky also relied on the proposition that UCPR 5.2 operated notwithstanding other provisions, such as the Privacy Act 1988 (Cth) and s 11 of the (now repealed) Road Transport (Vehicle Registration) Act 1997 (NSW), which were designed to protect the identity of, relevantly, owners of registered vehicles: Roads and Traffic Authority of New South Wales v Australian National Car Parks at [5] - [7] per Mason P (McColl and Bell JJA agreeing).
6. Mr Hmelnitsky contended that the plaintiff had a real interest in "nailing the lie" against the actual source of the libel rather than against Councillor Hooper who may well have a defence, or a better defence than the source, of qualified privilege.

Whether the plaintiff, having made reasonable inquiries, is unable to ascertain the identity of the source

1. I accept that the plaintiff is unable to ascertain the identity of the source. The real question is whether his inquiries to do so have been reasonable.
2. The question whether the reasonable inquiries have been made turns on the particular circumstances of the case. The meaning of "reasonable" must be determined having regard to the circumstances. Some assistance can be gained from other areas, including the requirement in motor vehicle legislation where an action lies against the Nominal Defendant but only if the identity of the vehicle concerned cannot "after due inquiry and search" be established. In Blandford v Fox (1944) 45 SR (NSW) 241, Jordan CJ said at 245: "I think the due inquiry and search means such inquiry and search as is reasonable in the circumstances. To be reasonable it must be as prompt and thorough as the circumstances will permit. It must be such as a reasonable man who had recourse only against the actual offender would make if he were desirous of identifying the offender in order to commence proceedings against him. The inquiries must if possible be set on foot before the scent is cold, and they must be made by all such means as are reasonably practicable in all quarters in which there is a reasonable prospect of obtaining useful information."
3. The plaintiff is not required to make inquiries which are bound to be futile. A so-called "unproductive ritual" (used in the context of cases sought to be brought against the Nominal Defendant) is not required: Slinn v Nominal Defendant (1964) 112 CLR 334 at 681-682 per Barwick CJ.
4. In the present case, all that the plaintiff has done is to ask the defendant, personally and through his solicitors, to divulge his source. There are understandable reasons why the defendant was not willing to do so, absent a Court order.
5. I reject Mr Hmelnitsky's submission that to ask the two or three people whom the plaintiff actually suspected was not reasonably required because it would have been "inevitable" that they would not incriminate themselves. It cannot, on the evidence, be concluded that the person concerned would not have been willing, if asked, to identify himself or herself. Some people are, by their nature, reluctant to stand by adverse statements made about others; others are not.
6. Moreover the plaintiff did not volunteer the futility of such an inquiry as a reason for his not making it. The reason the plaintiff gave was that he was not on speaking terms with them. This might explain why he did not ask them himself but does not mean that he made reasonable inquiries when his inquiries did not include his writing to them, or causing his solicitors to write to them.
7. Nor did Mr Hmelnitsky submit that it would not have been reasonable to require the plaintiff to ask the persons suspected of being the source of the email because it would have aggravated the sting in the defamation. In any event, all that the plaintiff needed to do was to inquire of the three suspects whether he or she had informed Councillor Hooper that there was water damage to the first and second floors at about the time or shortly after the Ward Meeting.
8. Ultimately, I understood Mr Hmelnitsky to submit that it was enough for the plaintiff to establish that it was more likely than not that if he were to ask the persons he suspected, that they would not incriminate themselves as being responsible for providing the information to Councillor Hooper. I do not accept this formulation. The obligation to make "reasonable inquiries" requires the plaintiff to do more than carry out those inquiries which will probably result in the identification of the source. Besides, a judgment into which category the person concerned would fall cannot reasonably be made, without testing the proposition by asking. I accept the defendant's submission that "reasonable inquiries" also include inquiries that are optimistic in that, while they might not be likely to bear fruit, it is possibly that they may do so.
9. To regard the plaintiff as having made reasonable inquiries in the present case would, in my view, come "perilously close to undermining the purpose of the [rule] and depriving it of any real utility", to borrow the words of Sackville JA (McColl and Basten JJA agreeing) in a different, but analogous, context in Nominal Defendant v Meakes [2012] NSWCA 66 at [75]. All the plaintiff did was instruct his solicitors to correspond with the person who knew the identity of the source, but who may feel obliged not to disclose his or her identity, rather than communicate directly with the suspected source with a view to ascertaining whether he or she was prepared to reveal his or her identity.
10. I accept the defendant's submissions that the plaintiff has failed to make reasonable inquiries. Accordingly, the plaintiff has not established an entitlement to the relief sought in the summons. However, as I am obliged to make all relevant findings, having regard to my position as trial judge, I shall proceed to determine the other factual matters raised in the proceedings that depend on the evidence adduced.

Whether the plaintiff has a desire to commence proceedings that is genuinely held and objectively based

1. The plaintiff's desire to commence proceedings must be genuinely held and objectively based. There is therefore both a subjective and an objective element to this requirement
2. In order to commence proceedings against the person concerned the plaintiff needs to know his or her identity. As long as one of the reasons the plaintiff wants to know the identity of the person concerned is to bring proceedings against him or her, this requirement is satisfied, since the reason does not have to be the sole reason.
3. I am satisfied on the basis of the plaintiff's evidence that he genuinely proposes to bring defamation proceedings against the person concerned. He does not appear to be reticent about consulting his solicitors, or resorting to litigation to assert what he considers to be his legal rights.
4. The question whether the plaintiff's desire to bring proceedings is bona fide and not capricious is a more difficult question. On the one hand there is considerable force in the submission that the prospects of success of defamation proceedings (if the communication to the defendant was along the lines of the email) are so speculative that it would be difficult to infer that the plaintiff is bona fide about commencing them, in part because of the implausibility of a person in his position sabotaging his own property, particularly in such a crude way. However, given the plaintiff's obvious interest in stymieing the objections to his developments (both at the Property and with respect to 147 Sailors Bay Road), it is not fanciful that he might be regarded as a suspect who might be responsible for something that made residents' lives more difficult and less comfortable, notwithstanding his ownership of various units in the building and the prospect, at the time of the damage, of his getting the approval he wanted from a full meeting of Council.
5. In these circumstances I am satisfied that the plaintiff not only genuinely desires to bring defamation proceedings against the source, but has a bona fide desire to do so.

Whether the discretion ought be exercised in favour of making the order

1. As I am not satisfied that the plaintiff has made reasonable inquiries, the question of discretion does not arise. However, Mr Hmelnitsky submitted that, even were I not satisfied that the plaintiff had made reasonable inquiries, I ought address the question of discretion to avoid a multiplicity of applications. He postulated that, if the summons were dismissed on the ground that the plaintiff had not made reasonable inquiries, all that would occur would be that the plaintiff would make further inquiries and would, if the source were not established, have to commence fresh proceedings.
2. I do not consider it to be an appropriate course to address the question of discretion at this stage. First, any indicative view I might express would not be binding because the basis for the making of the order has not been established. Secondly, the expression of a view might affect the response, of those persons whom the plaintiff suspects, to any inquiry the plaintiff might make to ascertain the identity of the source. Thirdly, although I have power to dispense with compliance with the rules in the interests of justice, I do not consider it to be appropriate to do so in the present case. The requirement that the applicant for preliminary discovery make reasonable inquiries before invoking the jurisdiction of the Court to compel disclosure of information or documents is too well established to be put aside in that way.
3. Moreover, I do not consider that the provisions in Part 6, Division 1 of the Civil Procedure Act ought be construed to authorise the overriding of an important pre-condition to the availability of preliminary discovery, the plaintiff's obligation to make reasonable enquiries, the fulfilment of which may make the recourse to the Court unnecessary.

Orders

1. I make the following orders: 1. Dismiss the summons. 2. Unless an application is made to my Associate in writing within seven days hereof, order the plaintiff to pay the defendant's costs of the proceedings.

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. Decision last updated: 29 July 2015