(a) The material was a publication to Annette Denny rather than by Annette Denny;
(b) The material was not a publication to "one of the named websites" specified in order 1 of Adams J;
(c) The material is not a "publication", because it is simply a printed copy of a document; and/or
(d) The material is confidential.
13 The issue for determination is not whether an order for discovery in respect of the material in the Report ought to be made. His Honour Justice Adams had already made orders to that effect on 8 April 2009. The Court, as presently constituted, was not asked to hear an appeal from his Honour's orders and the Court ought not, in the absence of good reason, reconsider an issue, which has already excited the Court's attention. For these reasons, the decision in Nylex (at [27]), which restricted the capacity of the plaintiffs to seek preliminary discovery from the defendants in order to decide whether to sue third parties under UCPR 5.3, is not directly in issue.
14 Rather, the issue to be decided is whether, notwithstanding the order of preliminary discovery, access to any of the objected material should not be granted because it:
+ falls into a limited category warranting the Court's discretionary refusal to grant discovery by excluding material from the operation of the orders of 8 April 2009, because, amongst other things, of a failure by the plaintiff to make reasonable enquiries; or
+ is irrelevant or confidential, in accordance with Order 6 of his Honour's orders of 8 April 2009, or, otherwise, does not fall within the terms of his Honour's orders.
15 The first and second defendants submitted that, notwithstanding the grant of preliminary discovery by his Honour Justice Adams, a discretion existed to exclude evidence otherwise satisfying UCPR 5.2 and 5.3 from discovery. The defendant sought to rely on the decision of her Honour Justice Simpson, in Papaconstuntinos. In Papaconstuntinos, Simpson J stated (at [20]) that the power to grant discovery in UCPR 5.3:
"is potentially an extremely demanding task and a considerable imposition upon a defendant … it may require the prospective defendant to make an assessment of the potential relevance of documents or other things to putative proceedings that have not yet been formulated. It may require a very lengthy and detailed examination of documents and records. It is not a power to be exercised lightly. It is, no doubt, for that reason that the power is not to be exercised unless and until the plaintiff has been shown to have made reasonable enquiries otherwise."
16 Even though her Honour, in the foregoing, was concerned with the grant of discovery, the Court accepts, without deciding, that a residual discretion of that kind exists. The circumstances of the first and second defendants, and the nature of the objected material, do not warrant the Court refusing to grant discovery. There was no want of reasonable enquiries on the part of the plaintiff. The nature of the objected material, appearing in the Report and appendices, which have already been prepared, are such that there would be little or no further imposition on the first and second defendants, should discovery be granted.
17 Generally, discovery ought be given to the plaintiff in respect of the Report and the appendices constituting the objected material. On the whole, the evidence contained in the appendices "relates to" the publication of the blogs set out in annexures B, C, F, H and K to the affidavit of Natasha Lakaev, sworn 3 April 2009, on the named Internet sites, as required by Order 1 of 8 April 2009.
18 The appendices relate to the publication of each of the named blogs because they:
+ evidence the process by which the blog "Close Encounters with Universal Knowledge" was published, who was involved and its publication to other persons (Appendices 4, 9-35, 38, 40-41);
+ evidence the creation and publication of the blog "The Truth about your Leader", including the second defendant's use of the username "max_burn" (Appendices 39, 42-44, 48-52, 52); or
+ indicate the first and second defendants were involved in publishing the blog "My Personal Experience with a Cult" to another person and that other person's publication of that blog on the rickross.com website (Appendices 45-47, 57).
Such evidence relates to the identity of the proper defendants, because it, of itself, or when combined with other material, directly or indirectly renders more probable the identity of persons who had published, anonymously or under pseudonyms, material that would, in the plaintiff's submissions, lead to a defamatory imputation.
19 A basis for the first and second defendants' objections was that some of the evidence, particularly of email correspondence, was not published by the defendants or alternatively was not published on a named website. The material establishes the involvement of a person in the publication of material and is relevant to determining the identity of the potential defendant (UCPR 5.2(1)), even if the material itself was not published directly onto one of the named websites.
20 Even though some of the evidence contained in the appendices would not, of itself, establish the identity of the publisher, taken together, they show a course of conduct evidencing that the defendants published, or were involved in the publication of, the blogs set out in annexures B, C, F, H and K to the affidavit of Natasha Lakaev, sworn 3 April 2009, and each is therefore within the terms of UCPR 5.2(1).
21 Moreover, there is no requirement in his Honour's orders of 8 April 2009 that the discoverable records of communications were published by the first or second defendant, rather than published to them, so long as the evidence relates to the publication of the blog.
22 However, discovery should not be granted in respect of Appendices 2, 36 and 37. The plaintiff submits that Appendices 2, 36 and 37 indicate that a certain person was responsible for the writing and the publication of the blog "How I Found Universal Knowledge". However, each of these appendices is a copy of an email from various third parties, otherwise unrelated to these proceedings, expressing the opinion, the basis for which is not established, that a certain person (to which previous reference has been made earlier in this paragraph) is the author of the anonymous blogs.
23 The basis on which the third parties express their opinion is, on examination of the emails, speculative, and arises, it seems, from the supposed similarity in the style of the blogs and the alleged author, rather than something actually known to the third party. This does not provide a basis for a reasonable suspicion that the certain person was the author. Such evidence cannot therefore provide a basis for the identity of a potential defendant, as required by UCPR 5.3 (see also Papaconstuntinos, at [25].
24 For the foregoing reasons, the Court made orders on 11 February 2010, to reflect the terms of the orders announced on 4 February 2010, in the following terms: