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[2006] NSWSC 945
procedural. The amended summons was dismissed with costs ([34]).
The plaintiff wanted documents before deciding whether to bring a defamation case. The judge considered each proposed defendant separately. The letter could support a possible claim against Holmes à Court, but the plaintiff had not shown that he made reasonable inquiries or that Holmes à Court might hold documents that would help him decide whether to sue. The evidence also did not show a possible claim against Richardson. The rule was for deciding whether to start proceedings, not for preparing a case after it had started. The court dismissed the application with costs.
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In Papaconstuntinos v Holmes à Court & Anor [2006] NSWSC 945, Simpson J considered an application for preliminary discovery under r 5.3(1) of the Uniform Civil Procedure Rules 1995 (NSW) (UCPR). The plaintiff, Tony Papaconstuntinos, sought documents from Peter Holmes à Court and Shane Richardson before deciding whether to commence a defamation action.
No linked legislation citations have been extracted yet.
The application concerned a letter dated 17 March 2006 from Holmes à Court to the secretary of the CFMEU. The letter complained about Papaconstuntinos's conduct as a CFMEU official and alleged that he had used the South Sydney District Rugby League Football Club for personal advancement. It also raised concerns about the employment and salary of Papaconstuntinos's son, Jamie. Holmes à Court wrote that he had reviewed club accounts, compared the son's CV and job description with those of other coaching staff, and interviewed senior management ([5]-[6]).
The plaintiff sought three broad categories of documents: material about the publication and distribution of the letter and responses to it; material relied on or considered in a due diligence exercise concerning the club; and material relating to his son's employment between January 2005 and 30 March 2006 ([2]). The plaintiff said documents might disclose further defamatory material and might assist in assessing possible defences. His affidavit also referred to preparing and presenting a future action ([9]-[11]).
The judge assessed the application against each proposed defendant separately ([21]). She accepted that the letter could support a possible defamation claim against Holmes à Court ([22]). But she found the evidence insufficient to establish a possible claim against Richardson: the letter said Richardson terminated the son's employment after learning about alleged overpayments, and did not suggest he participated in those overpayments ([24]-[25]).
The application also failed against Holmes à Court. The plaintiff had not shown that he made reasonable inquiries, and the court was not satisfied he had demonstrated that Holmes à Court might possess documents that would assist the decision whether to commence proceedings ([27]-[30]). Simpson J dismissed the amended summons with costs ([34]).
The court's analysis began with the text of UCPR r 5.3(1), reproduced at [1]. The rule permits an order where the applicant may be entitled to relief, has made reasonable inquiries but still lacks enough information to decide whether to commence proceedings, and the prospective defendant may have documents whose inspection would assist that decision.
Simpson J translated those elements into five separate matters that had to be established in relation to each prospective defendant ([14]). She also emphasised that satisfying those matters would not automatically require an order: the power remained discretionary ([18]). The court considered the purpose of the provision important. That purpose was to obtain enough information to decide whether to commence proceedings, as stated in the rule itself ([19]).
For Richardson, the application failed at the first threshold. The court found nothing in the letter or other evidence that would support the possibility of a claim against him. In particular, the letter described Richardson as ending the son's employment on learning of the alleged overpayments, rather than as participating in them ([24]-[25]). Because the threshold was not met, the judge did not need to decide whether the other requirements were satisfied as to Richardson.
For Holmes à Court, the position was different at the first stage. The defendants did not dispute that the letter included material that could give rise to a defamation claim, and the judge was satisfied the plaintiff might be entitled to relief against him ([7], [22]). That did not resolve the application. Counsel for the plaintiff accepted that no inquiries had been made before the summons was issued. The judge considered that inquiries made before the hearing could, in principle, be relevant, but found that the later correspondence did not demonstrate reasonable inquiries. Nor was she satisfied that inquiries would be futile. She added that inquiries need not be confined to inquiries of the prospective defendants ([27]-[28]).
As a result, the plaintiff also failed to establish that reasonable inquiries had left him without sufficient information to decide whether to commence proceedings ([29]). In addition, the court was not satisfied that the first defendant might possess documents that would assist in that decision ([30]). The conclusions on these requirements were sufficient to defeat the application against Holmes à Court.
The judge also drew a boundary between preliminary discovery and ordinary discovery after proceedings begin. The plaintiff's stated interest in preparing and presenting a case did not fit the rule's purpose. In the judge's view, preparation and presentation after commencement were functions of discovery in an existing suit, not preliminary discovery ([32]). The burden imposed on a prospective defendant also informed the judge's approach: an order might require detailed examination of documents relating to proceedings not yet formulated, and was not to be made lightly ([20]).
The judgment describes r 5.3 as a broader power than the power available under the preceding Supreme Court Rules, while noting that its scope had not yet been tested in that court ([12]). It also compares the NSW rule with the then Federal Court Rules, O 15A r 6. The Federal provision used the phrase “all reasonable inquiries”, whereas UCPR r 5.3 required “reasonable inquiries”. Simpson J noted that this was a difference between the provisions and referred to Young CJ in Eq's view that the UCPR rule was wider than the Federal rule, in Panasonic Australia Pty Ltd v Ngage Pty Ltd [2006] NSWSC 399 ([17]).
For interpreting the NSW provision, the judge treated Federal Court decisions as guidance where there was no material divergence between the rules ([13]). She referred to Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd for propositions about the requirements of the Federal provision and the objective or subjective character of particular tests ([15]-[16]). She also noted that the power remained discretionary even if the requirements were met ([18]). CGU Insurance Ltd v Malaysia International Shipping Corporation Berhad was mentioned in relation to the Federal requirement to make “all reasonable inquiries”, a phrase Simpson J said differed from the NSW wording ([17]).
The decision therefore applied the wording of the NSW rule rather than simply importing the Federal test. Its practical contribution in this judgment is the structured treatment of the five requirements, the separate assessment of each prospective defendant, and the insistence that the application be directed to deciding whether to commence proceedings.
The judgment does not establish a “later” state of the law. It contains no account of subsequent decisions or legislative amendments, and no later treatment can be inferred from its text. It also expressly leaves some questions unresolved, particularly the possible use of preliminary discovery to find additional causes of action ([31]) and whether the document categories should have been narrowed ([33]).
At [14], Simpson J listed five matters that had to be considered separately for each defendant. In plain English, the applicant needed to show a possible claim against that particular person, reasonable inquiries, a remaining information gap, a possible connection between that person and useful documents, and that inspecting those documents would help decide whether to start proceedings. The list makes clear that a plausible underlying claim is not enough by itself.
At [20], the judge described preliminary discovery as potentially “an extremely demanding task and a considerable imposition” on a prospective defendant. She explained that a person might have to assess the relevance of documents to a case that had not yet been formulated. Her statement that the power “is not a power to be exercised lightly” explains why the court looked carefully at the application’s prerequisites.
At [27], the judge said the relevant time for assessing inquiries was the time the court considered the application. Thus, inquiries need not necessarily have been completed before filing, but the correspondence relied on in this case did not establish that reasonable inquiries had been made. The judge also rejected the suggestion that inquiries could be skipped because they would likely be futile, and noted that inquiries were not confined to the prospective defendants.
At [30], the judge said she was not satisfied that Holmes à Court might have documents that could assist the plaintiff in deciding whether to proceed. This is a distinct requirement from showing that the defendant may have documents generally. The documents must be connected to the decision contemplated by the rule.
At [32], the judge distinguished deciding whether to bring proceedings from preparing and presenting a case once it has begun. In straightforward terms, the provision was not treated as a pre-action route for obtaining the material needed to run the case after filing.
At [31], Simpson J expressed concern that the rule might not allow an applicant to search for additional causes of action beyond the one supporting the preliminary discovery application. But she expressly described her views as tentative because the point had not been fully explored and the defendants had not taken it up. It should therefore not be presented as a fully reasoned, definitive holding.
The decision is relevant to applications for pre-action discovery where a prospective plaintiff seeks documents from one or more identified people or entities to decide whether to commence proceedings. It particularly highlights situations where the applicant already points to a potential cause of action but says documents are needed to test the information gap or possible defences. The judge's discussion of Alphapharm accepted that the Federal rule was not necessarily unavailable merely because the applicant already had material supporting a prima facie case, including where the remaining uncertainty concerned a potential defence ([16]-[17]). That discussion was part of the court's consideration of the analogous Federal rule, not a separate determination of all possible applications under the NSW rule.
The case also matters where the applicant seeks to investigate multiple proposed defendants on the basis of the same events. The judge insisted that each claim had to be treated separately and that the outcome need not be the same for every proposed defendant ([21]). A letter or other document that supports a possible claim against one person may not establish a possible claim against another. Here, the allegation against Holmes à Court was materially different from the description of Richardson's conduct ([22]-[25]).
The decision is also pertinent when an applicant relies on broad document categories, or describes the purpose of discovery as preparing a future case. It signals that the purpose stated in the rule and the potential burden on the prospective defendant are central considerations ([19]-[20], [32]-[33]). The court did not decide whether the categories sought here were too broad, so the judgment does not supply a final test for how narrowly categories must be framed ([33]).
It does not determine whether an applicant can never seek information that could reveal another cause of action. The concern at [31] is expressly tentative. Nor does it establish a universal rule about what inquiries are reasonable: the court found the evidence in this application insufficient, but the judgment gives no exhaustive checklist of inquiries for other cases.
The judgment text supplied here reports no decisions that later applied, followed, distinguished, or criticised Papaconstuntinos. It therefore cannot support a claim about how subsequent courts have treated the decision.
The authorities discussed within the judgment are earlier or contemporaneous references, not later treatment. Simpson J used Alphapharm as guidance on the analogous Federal Court rule and noted that its requirements included objective tests and a subjective element ([15]-[18]). She discussed CGU Insurance in relation to the Federal rule's “all reasonable inquiries” wording, while distinguishing that wording from the NSW rule's requirement of “reasonable inquiries” ([17]). She referred to Panasonic for the view that the UCPR rule was wider than the Federal counterpart ([17]). Riddick v Thames Board Mills Ltd was cited by the plaintiff concerning limits on use of documents produced on discovery, but the judgment does not make that rule a central basis for the outcome ([10]).
For professional research purposes, the distinction between what this judgment itself decided and what it reported about other authorities is important. Its outcome rested on failures to satisfy the UCPR requirements on the evidence, particularly reasonable inquiries and the connection between documents and the decision whether to commence proceedings. Its comments about additional causes of action were tentative, and the breadth objection was left undecided.
The judgment leaves open the permissible scope of preliminary discovery where an applicant hopes to identify causes of action additional to the one grounding the application. Simpson J expressed concern that the wording “such a claim for relief” might confine the rule to the claim underlying the application, but expressly labelled the discussion tentative ([31]). A reader should not treat that passage as a definitive resolution.
The decision also does not set out a comprehensive standard for what amounts to “reasonable inquiries”. It establishes that no inquiries had been made before filing, that the later correspondence relied upon did not cure the deficiency in this case, and that the court was not persuaded inquiries would be futile ([27]-[29]). It also states that inquiries are not limited to contacting the prospective defendant ([27]). The judgment does not specify what inquiries would have been sufficient on different facts.
The relationship between an applicant's existing evidence and the need for preliminary discovery is discussed through the Federal authorities. The judge accepted the guidance in Alphapharm that the Federal rule was not automatically unavailable where the applicant already had material making out a prima facie case, including where the remaining issue concerned a possible defence ([16]-[17]). The judgment does not separately determine every possible application of that reasoning to the differently worded NSW rule.
Finally, the court did not decide whether the requested categories were too broad or whether narrower categories could have justified relief ([33]). The judgment explains why broad, burdensome searches are a concern, but does not define a minimum level of document-category precision. Those questions would require examination of the applicable rule and relevant authorities beyond what this judgment itself states.
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CITATION : Papaconstuntinos v Holmes a Court & Anor [2006] NSWSC 945
DECISION : Amended summons dismissed with costs.
CATCHWORDS : defamation - preliminary discovery - foreshadowed defamation action - documents that might provide plaintiff with further cause of action - documents that might enable evaluation of potential defences to claim - what plaintiff needs to establish - nature of relief - what constitutes reasonable inquiries - purpose of UCP r 5.3
LEGISLATION CITED : Federal Court Rules - Order 15A r 6 Uniform Civil Procedure Rules 1995 r 5.3(1), r 5.3(3)
Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd, unreported, FCA, 24 May 1996 CASES CITED : CGU Insurance Ltd v Malaysia International Shipping Corporation Berhad [2001] FCA 1223; 187 ALR 279 Panasonic Australia Pty Ltd v Ngage Pty Ltd [2006] NSWSC 399 Riddick v Thames Board Mills Ltd [1977] 1 QB 881
Tony Papaconstuntinos - Plaintiff PARTIES : Peter Holmes à Court - 1st Defendant Shane Richardson - 2nd Defendant
COUNSEL : R Weaver - Plaintiff R McHugh - Defendants
SOLICITORS : Slater & Gordon - Plaintiff Baker & McKenzie - Defendants
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST
2006/13261 Tony Papaconstuntinos v Peter Holmes à Court & Anor
JUDGMENT 1 HER HONOUR: UCPR r 5.3(1) provides: "5.3 Discovery of documents from prospective defendant
(cf Federal Court Rules, Order 15A, rules 6, 7 and 9)
(1) If it appears to the court that: (a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and (b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and (c) inspection of such a document would assist the applicant to make the decision concerned, the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief." 2 By summons, originally filed on 7 June 2006, and amended on 9 August 2006, the plaintiff seeks orders under r 5.3(1) against each of two named defendants, Peter Holmes à Court and Shane Richardson. The orders he seeks are that each defendant give discovery of: "(a) all documents, memoranda and records whether electronic or hard copy, that are or have been in their possession, custody or power relating the publication and distribution of a letter dated 17 March 2006 a copy of which is annexed hereto and marked 'A' and any responses thereto. (b) all documents, including correspondence, memoranda and telephone records of each of the defendants and the South Sydney District Rugby League Football Club relied upon and/or considered by the first defendant in the conduct of the due diligence referred to in the letter marked 'A' hereto that was undertaken by or on behalf of the first defendant and/or White Bull Holdings Pty Limited. (c) all documents, including correspondence, memoranda and telephone records of each of the defendants and the South Sydney District Rugby League Football Club relating to the employment by that Club of Jamie Papaconstuntinos (Jamie Papa) between January 2005 and 30 March 2006." 3 By r 5.3(3), unless the court otherwise orders, such an application must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought. 4 Two affidavits, each sworn by the solicitor for the plaintiff, Mr Steven Lewis, have been filed. In the first Mr Lewis deposed, inter alia, that "on the grounds appearing herein" the plaintiff and the first and second defendants were likely to be parties to an action for defamation in this court. Mr Lewis went on to depose that the plaintiff was at all material times an officer of the Construction, Forestry, Mining and Energy Union ("the CFMEU") and a member of the board of the South Sydney District Rugby League Football Club ("the Souths Football Club"); that the first defendant was at all material times a Director of White Bull Holdings Pty Limited, a company which had acquired a controlling interest in the Souths Football Club; and the second defendant was at all material times the Chief Executive Officer of the Souths Football Club. Mr Lewis recounted a history of a campaign for control of the Souths Football Club. 5 Annexed to the affidavit was a letter, dated 17 March 2006, over the hand of the first defendant, addressed to Mr Andrew Ferguson, who is identified as the Secretary of the CFMEU. The letter opened with this paragraph: "Pursuant to our conversations recently, I would like to formally complain about the behaviour of an official of the CFMEU, Mr Tony Papa.
(There was no issue that the reference to "Mr Papa" was a reference to the plaintiff.) The first defendant then went on to write: "I have spoken to you previously about my concerns about Mr Papa's use of the South Sydney District Rugby League Football Club for his own advancement and I am afraid I am under the impression that it has continued. As recently as last weekend, half an hour before the kick off of the Rabbitohs-Roosters match, Mr Papa called at least one voting SSDRLFC Member to repeat misleading information about the proposal which is being put to Members. I am, frankly, at a loss to understand why Mr Papa has worked so hard to spread misinformation about our proposal. … Perhaps most seriously, I am concerned that Mr Papa has personally benefited from funds meant for the Football Club through the employment of his son Jamie in an assistant coaching staff position. Jamie Papa was employed by the club by Mr George Piggins in an assistant coaching position and his employment was terminated by Shane Richardson when Mr Richardson became aware of the overpayments. Having reviewed the accounts of the club, reconciled Mr Papa's CV and job description with other coaching staff, and having personally interviewed senior members of the management of the Club, there is no doubt in my mind that Mr Jamie Papa was paid a salary many times the going salary for a person of his experience and for the position that he was performing. Specifically, Mr Jamie Papa was paid a salary of approximately $60,000 when the going rate for the role he was performing was closer to $4,000. I do not know whether these funds that were paid to Mr Papa at a premium were a reward for other activities, or a method of channelling funds to the CFMEU, or indeed to Mr Tony Papa. …" 6 The first defendant sought the assistance of the addressee in checking the asserted facts, which, he said, were based on: "… our very extensive due diligence of the Football Club's records …" 7 It is the content of this letter that is the basis for the foreshadowed defamation action. It was not disputed that there was material in this letter which could give rise to a claim in defamation by the plaintiff against the first defendant. 8 To the second affidavit Mr Lewis annexed correspondence between his firm of solicitors and the solicitors acting for the defendants. The correspondence began with a letter from the defendants' solicitors pointing out that the summons as initially filed claimed relief under r 5.2, which relates to discovery to ascertain the identity or whereabouts of a prospective defendant. This drew a response, the solicitor for the plaintiff acknowledging the error and signifying his intention to seek leave to amend the summons to bring the claim under r 5.3. He followed that with this (to me rather puzzling) statement: "However we will treat your letter as an invitation for your clients to give verified discovery." 9 In his first affidavit Mr Lewis deposed: "10 The documents [i.e. those which he inferred from the first defendant's letter were in the possession of one or other or both of the defendants] bear potential relevance to the nature and extent of the publication of the defamatory material contained in the letter and the likely existence of further material defamatory of the plaintiff " "11 Without preliminary discovery of the relevant documents, the plaintiff stands to be seriously prejudiced in the preparation and presentation of any action he may bring to vindicate his reputation and/or protect his reputation against further attack ." (italics added) 10 He asserted that preliminary discovery was necessary because of a rule confining the use of subsequently discovered materials to the purpose for which they have been produced on discovery, and restricting the use that might otherwise be made of documents so produced. Riddick v Thames Board Mills Ltd [1977] 1 QB 881 was cited as authority for the proposition. No Australian authority was cited, but the existence of such a rule was not disputed. 11 During the course of oral argument the basis on which the claim is made was spelled out as twofold:
(i) to obtain any additional documents which might provide a further cause of action to the plaintiff; and (ii) to enable the plaintiff to evaluate the availability to the defendants of any potential defences to a claim. 12 So far as this court is concerned, r 5.3 confers a power broader in its scope than any it had under the Supreme Court Rules, which preceded the UCPR. That scope is, so far, untested. 13 The counterpart of r 5.3 in the Federal Court Rules (which is not in identical terms) has been the subject of some judicial consideration. I accept that decisions on that rule, save where it can be shown that there is divergence in the substance between the two rules, are of guidance in the interpretation of r 5.3. The Federal Court rule is as follows: " FEDERAL COURT RULES - ORDER 15A RULE 6 Discovery from prospective respondent 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)." 14 Analysis of the UCP rule shows that an order may not be made against either defendant unless, in relation to that defendant, the court is satisfied of five separate matters. They are:
(i) that the plaintiff may be entitled to make a claim against that defendant; (ii) that the plaintiff has made reasonable enquiries; (iii) that, notwithstanding that the plaintiff has made reasonable enquiries, he/she is unable to obtain sufficient information to decide whether or not to commence proceedings against that defendant; (iv) that that defendant may have, or may have had, possession of a document or thing that could assist in determining whether or not the plaintiff is entitled to make such a claim for relief; (v) that inspection of that document would assist the plaintiff to make a decision (whether to commence proceedings). 15 In Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (unreported, FCA, 24 May 1996), at [41] Lindgren J set out a number of propositions concerning the application of the rule. Relevantly for the present case, his Honour held that paragraphs 6(a) and 6(c) of the Federal Court rule pose objective tests, although the paragraph 6(b) test also contains a subjective element. These paragraphs are the equivalent of what is identified above as (i), (iv) and (v). 16 Significantly, Lindgren J observed, in the proposition numbered 6, held that the questions posed by the Federal Court rule: "are to be answered in the context of an adversary system of forensic contest in which a proposed respondent is ordinarily entitled to withhold its evidence, certainly prior to the commencement of proceedings."
Further, the questions are to be answered in the light of the nature of the cause of action contemplated and the range of information potentially available in respect of a cause of action of that kind. He rejected a submission made on behalf of the respondent in that case that the rule was rendered unavailable where the applicant already had available evidence establishing a prima facie case for the granting of relief. Such a construction would, he held, "impose an artificial constraint" on the rule: "not supported by its terms or its purpose to exclude, a priori , all cases in which the insufficiency of the information possessed by the applicant to enable a decision to be made whether to litigate is due to a matter of 'defence' which would defeat the prima facie case." 17 I take this to mean that Lindgren J was of the view that the power conferred by the rule is available to be invoked by a potential plaintiff who, it can be seen, on the information and material already in his/her possession, has, prima facie, a cause of action, but who wishes to explore, before embarking on the action, potential defences available to the proposed defendant. In CGU Insurance Ltd v Malaysia International Shipping Corporation Berhad [2001] FCA 1223; 187 ALR 279, Tamberlin J adopted the same view, and, in the context of the case before him, distinguished between making some enquiries and making all reasonable enquiries (as required by the Federal Court rule). That, however, has little application to the rule here under consideration because this is one of the distinguishing features between the two rules. The Federal Court rule makes the power available after "all reasonable enquiries" have been made; the UCP rule merely requires that "reasonable enquiries" be shown to have been made. In this Court Young CJ in Eq has taken the view that the UCP rule is wider than that of the Federal Court: Panasonic Australia Pty Ltd v Ngage Pty Ltd [2006] NSWSC 399. 18 It is also to be noted that, even if the plaintiff takes all of the five hurdles, the power to make an order remains discretionary: see Alphapharm, proposition 5. 19 The purpose for which the power is conferred by r 5.3 is stated within sub-paragraph (a). It is: "to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant …" 20 These questions are also to be considered against the background of the nature of the relief made available by r 5.3. This is, before any substantive proceedings have been commenced, to require a prospective defendant to give discovery of documents that are or have been in the prospective defendant's possession and that relate to the question of whether or not the plaintiff is entitled to make a claim for relief. This is potentially an extremely demanding task and a considerable imposition upon a defendant. Depending upon the specificity with which the documents ordered to be discovered are identified, 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. 21 It is important to remember that two separate claims, independent of each other, are here made: one against the first defendant, and one against the second. They are to be treated separately. The outcome of the application will not necessarily be the same in each case. Each has to be assessed on its own merits. 22 Counsel who appeared for both defendants did not contend that the plaintiff had not established, as against the first defendant, that he might be entitled to make a claim for relief (in defamation). Having regard to the contents of the letter I have set out above, I am amply satisfied that the plaintiff may be so entitled so far as the first defendant is concerned. 23 Such a concession was not, however, made, either explicitly or implicitly, so far as the second defendant is concerned. It was argued that the plaintiff has not met the relevant standard. In written submissions it was put that there was nothing other than the assertion in the affidavit that the plaintiff may be entitled to make such a claim against the second defendant. 24 I accept this contention. All that was said about the second defendant in the letter was that he terminated the employment of the plaintiff's son when he learned that he (Jamie Papa) had been overpaid. As a consequence the first defendant, in the letter, then queried the purpose of the payments of those funds to Mr Papa Jnr. There was no suggestion that the second defendant was involved in the overpayments; just the opposite, in fact, since the allegation made in the letter was that he terminated them on becoming aware of them. 25 There is nothing in the letter, and nothing else in the evidentiary material, which would enable me to be satisfied that the plaintiff may be entitled to make a claim for relief against the second defendant. The claim against him fails at the threshold. So far as he is concerned, it is unnecessary to consider the remaining questions. 26 So far as the first defendant is concerned, the next questions are whether the plaintiff has established that he has made reasonable enquiries, and, if so, that those enquiries have failed to yield sufficient information. 27 Counsel for the plaintiff essentially conceded that no enquiries had been made prior to the issue of the summons, but argued that the subsequent correspondence remedies the defect. I accept that the relevant time is the time the court is considering the application. If reasonable inquiries have not been made prior to the filing of the application, but are made prior to hearing, an order may nevertheless be made. Counsel relied upon that part of the plaintiff's solicitors' letter to the defendants' solicitors stating that they would treat the defendants' solicitors' letter as an invitation for the defendants to give verified discovery. I do not see that this in any way remedies the deficiency. The other point counsel made was that enquiries would be likely to be futile, thus obviating the need to make them. I am not satisfied that this has been shown to be the case. The inquiries required by the rule are not limited to inquiries made of the prospective defendant(s). 28 I am not satisfied that the plaintiff has met the test of reasonable enquiries. 29 It follows that the plaintiff has not satisfied the next test, that, following the making of reasonable enquiries, he has been unable to obtain sufficient information to make the necessary decision. 30 Nor am I satisfied that the plaintiff has established that the first defendant may have in his possession documents that may assist him in determining whether or not to proceed with the proposed litigation. 31 This raises another question, which arose during the course of argument, but was not taken up on behalf of the defendants, and was not fully explored. The views which follow are, therefore, tentative. However, I should express my concern at the notion, plainly held by the plaintiff's legal representatives, that r 5.3 discovery is available for the purpose of identifying causes of action additional to that which provides the foundation for the application made to the court under r 5.3(1). That, it seems to me, is contradicted by the words "whether or not the applicant is entitled to make such a claim for relief" in sub-para (b). 32 On behalf of the defendants the point was taken that the plaintiff's expressed desire for access to the documents is for the purpose of the preparation and presentation of any action he may bring to vindicate his reputation and/or protect his reputation against further attack. This was characterised as a misconception. I agree. The rule is directed to determination of whether or not to convene proceedings. Preparation and presentation of a case once commenced does not appear to me to be a purpose that comes within the rule; that is of a function of discovery after suit, and not a function of preliminary discovery. I accept the defendant's contentions in this respect. 33 The defendants also complained of the scope of the documents sought in the summons. Having regard to what I have said about the potentially demanding nature of any orders made under the rule, I consider that there may well be some substance in this complaint. However, it is not necessary to decide whether relief ought, if granted, be more limited than is mentioned in the orders as drawn. 34 The amended summons will be dismissed with costs. **********
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Papaconstuntinos
Holmes a Court & Anor
The amended summons was dismissed with costs ([34]).