Clarkson v Director of Public Prosecutions [1990] VicRp 65; [1990] VR 745

McCarthy v Dolpag Pty Ltd [2000] WASC 106

Paxus Services Ltd v People Bank Pty Ltd [1990] FCA 500; (1990) 99 ALR 728

1 HASLUCK J: This is an application by the plaintiff, Nexhmi Rexha for pre-trial discovery pursuant to O 26A r 4 of the Rules of the Supreme Court. The application is supported by an affidavit of the plaintiff sworn 16 November 2001.

2 The plaintiff is an Associate Professor of Marketing at Curtin Business School. In that capacity he acted as the Supervisor and Examiner of an overseas honours student. On 20 August 2000, while assessing the final draft of the student's honours thesis, the plaintiff formed a view that the student had fabricated data on which the thesis was based. The plaintiff was also troubled by two instances of what seemed to be plagiarism in the student's thesis.

3 On 6 December 2000 the plaintiff sent a formal and confidential report to Professor Ram Ramaseshan, the Head of School of Marketing at Curtin University of Technology, proposing that the thesis be annulled due to academic misconduct.

4 The student's thesis was brought before the Honours Committee for review on 18 December 2000. At that meeting, the Honours Thesis Committee declined to follow the plaintiff's recommendation that the thesis be annulled. The Committee expressed its view of the matter in these terms:

"It was decided that the student's mark must be deferred until both the Head of School and the Supervisor Nexhmi Rexha are available to discuss the matter further, and to allow an opportunity for the student to be consulted."

"The Committee also expressed, and wished to have put on record its unanimous disapproval and condemnation of the conduct of the Supervisor, Nexhmi Rexha, in regard to [the student's] supervision."

6 These minutes were distributed to all members of the School of Marketing. They were not marked as confidential.

7 The plaintiff says in his affidavit sworn 16 November 2001 that since the publication of the 18 December 2000 minutes his reputation as supervisor has been eroded. The Defendant university has transferred its postgraduate students to other supervisors. He is also concerned about his academic career and feels that these events are likely to greatly damage his future career prospects.

8 On 19 January 2001 the Head of the School of Marketing, known as the "HOS", sent the plaintiff an email saying that the student and his mother had both written letters to Professor Mike Wood, the Executive Dean, complaining that the student had received inadequate support from Mr Rexha as his supervisor. The HOS said that the Executive Dean had asked him to respond to these letters and that he had attended a meeting with the student and his mother on 18 January 2001. At that meeting, he took note of their concerns about the plaintiff's alleged failure to provide adequate supervision and timely feedback on the progress of the research work.

9 The minutes of the Honours Review Meeting held on 24 January 2001 indicate that the student's mother had threatened legal action against the School of Marketing if the matter was not satisfactorily rectified. At that meeting, the Committee proceeded to overrule the plaintiff's recommendation that the thesis be annulled. It was decided, instead, that the student be asked to re-submit his thesis with the allegedly plagiarised material removed. In due course the thesis was re-examined by an independent examiner, Doctor Ian Phau, and awarded a pass.

10 On 13 March 2001 the Executive Dean informed the plaintiff by memo that he had appointed Mrs Mary McComish, Assistant Dean, College of Law at the University of Notre Dame to investigate the matters in issue.

11 On 29 March 2001 the Executive Dean circulated an email to all staff in the Curtin Business School to this effect:

"It is probable that the West will publish a story tomorrow or shortly about issues in the School of Marketing involving questions of plagiarism and supervision. I was advised of the issues in late February and arranged for Mrs McComish, Associate Dean, College of Law, University of Notre Dame to review the matter. I expect her report in about a week. It is possible that staff in other sections of Curtin will ask you about this: I suggest you respond by informing them that an external review is underway."

12 The plaintiff contends in his affidavit that every staff member who received this email was put on notice that the plaintiff's capacity as a supervisor was under investigation.

13 The Executive Dean received the McComish report in March or April 2001 but has denied the plaintiff access to it. However, the following extract from the report was read out at the School of Marketing meeting held on 2 August 2001:

"In summary I find that in relation to the conduct of the supervisor there is no evidence of short comings in his conduct, either in relation to his supervision of the student, or in relation to his handling of the academic misconduct and attempted award of an ANN grade."

14 The Executive Dean has apparently not informed the staff at the Curtin Business School about the positive findings reflected in the McComish report.

15 It is against this background that the plaintiff is weighing up whether to commence legal proceedings for defamation.

16 By Originating Summons dated 16 November 2001 the plaintiff seeks orders that:

"1. The Defendant provide Discovery to the Plaintiff pursuant to Order 26A Rule 4 of the Supreme Court Rules of the following:

(a) All letters, emails, facsimile transmissions or other correspondence sent by [the student] and/or his mother to Professor Mike Wood, the Executive Dean, Curtin Business School, expressing concern over the lack of adequate support that [the student] received from the Plaintiff as supervisor.

(b) Copies of any instructions given by the Executive Dean to the Head of the School of Marketing in relation to the documents described at (a).

(c) Minutes from the meeting of the School of Marketing on 29 March 2001.

(d) Report of the Inquiry conducted by the independent reviewer Mrs Mary McComish, Associate Dean of the School of Law, Notre Dame University Australia during March/April 2001;

(e) Any emails or other documentation confirming that Professor Deane Terrell, who investigated cases of plagiarism at Curtin University, received my submission for his inquiry which was forwarded by email on 21 March 2001.

(f) Minutes of the Meeting of the School of Marketing on 31 August 2001

(g) Any other document or emails concerning the quality of the Plaintiff's supervision of [the student]."

17 I must begin by dealing with a few preliminary matters.

18 At the hearing before me counsel for the plaintiff, Mr Richardson, said that the plaintiff would not pursue the documents specified in par 1(e) of the summons. I will say nothing further about that matter.

19 Counsel for the Defendant, Mr Willinge, submitted that in the absence of any evidence from the plaintiff concerning the minutes mentioned at par 1(f) of the summons that part of the application should be disregarded. It now appears, however, that the minutes in question were wrongly described.

20 That being so, I will amend the date in par 1(f) of the originating summons to 31 October 2001 and deal with the application accordingly.

21 Counsel for the defendant also submitted that he did not understand par 1(g) of the summons to be seriously pressed, for it is far too broad in its terms, unconfined by time, and purports to apply to all sections of the university. This paragraph was not the subject of any written submissions and is undeniably subject to the defects mentioned by counsel. I am not minded to make an order for discovery which is broadly expressed and will therefore say nothing further about that aspect of the matter.

22 Order 26A r 4 of the Rules of the Supreme Court deals with discovery from a potential party. The Rule is expressed in these terms:

"(1) This rule applies if a person who may have a cause of action against a person whose description has been ascertained ("the potential party") wants-

(a) to commence proceedings against the potential party; or

(b) to take proceedings against the potential party in the course of an action to which the person is a party,

but the person, after reasonable enquiries, has not been able to obtain sufficient information to enable a decision to be made as to whether to commence or take the proceedings.

(2) If there are reasonable grounds for believing that the potential party had, has or is likely to have had or to have, possession of documents that may assist in making the decision, the person may apply for an order under this Rule.

(3) The application shall be supported by an affidavit and a copy of both shall be served on the potential party.

(4) On the application the Court may order the potential party to give discovery of all documents that are or have been in the potential party's possession and that may assist the applicant in making the decision."

23 Before turning to the matters in issue, it will be useful to look briefly at some of the relevant principles of law bearing upon this application.

24 In Davis v Sagar Pty Ltd, unreported; SCt of WA; Library No 980443; 10 August 1998 Master Sanderson said that the policy consideration underlying O 26A was to ensure that a party only commenced litigation after careful consideration, rather than proceeding in the hope that something might turn up during the discovery process. Seaman Civil Procedure confirms this view at par 26A.0.2.

25 Master Sanderson in Davis v Sagar (supra) then went on to consider the application of O 26A :

"As with most, if not all, interlocutory matters it is a mistake to attempt to formulate hard and fast rules for the application of O 26A. But a number of principles can be drawn directly from the wording of the rule. Dealing first with r 4, the applicant must establish that it either wants to commence proceedings against the potential party or to take proceedings against the potential party in the course of an action to which the person is a party. The use of the word 'wants' in this rule is interesting. In the context in which it appears, it must mean 'is considering' or 'anticipates'. It cannot be read as meaning that a determination has been made.

Next, reasonable enquiries must have been made as a precondition to the rule being activated. What are reasonable inquiries, will depend on the circumstances. However, I would regard this as a low threshold test. But certainly something must have been done.

Finally, the applicant, after reasonable inquiries, must have been left in a position where it had not been able to obtain sufficient information to enable a decision to be made as to whether to commence or take the proceedings.

...

In my view it is possible to infer, in most cases, from the fact that proceedings have not been initiated that sufficient information is not available to enable a party to make a decision as to whether or not to commence proceedings...it would take very firm and definite evidence that final decision has been taken by the applicant before discovery from the potential party could be denied. If such a final decision had been taken, then the appellant would be guilty of an abuse of process."

26 Put shortly, the rule permits an applicant to obtain sufficient information for a carefully considered decision to be made as to whether legal proceedings should be commenced. Once the decision to commence legal proceedings has been made, it seems that it could be an abuse of process to apply for discovery under this rule.

27 In Gibson v Australia and New Zealand Banking Group, unreported; SCt of Victoria; 30 August 1991 Gobbo J looked at a comparable rule in Victoria and said this:

"I am satisfied that what the plaintiff is really seeking in this case is some form of incidental verification or some form of confirmation to buttress her present state of belief.

Although there might be a public interest argument allowing prospective litigants to secure, on terms, access to documents to enable them to verify their belief that they have a sufficient cause of action, that is not at present the ambit of this rule. The rule is really directed to assisting the applicant who, after making all reasonable inquiries, finds himself or herself without sufficient information to enable that applicant to decide whether to commence proceeding.

In my view, the gist of the rule is directed to knowing not whether the case is a strong one or a weak one, not whether it is incidentally supported or what the full range of other material is, but whether the applicant has sufficient information to enable that applicant to decide whether to commence a proceeding."

28 This suggests that a line must be drawn between applying for pre-trial discovery in order to facilitate the making of a decision about whether to commence proceedings, and seeking discovery in order to test the strength of the opposing case in detail.

29 In Central Exchange Ltd v Anaconda Nickel Ltd [2001] WASC 128 Parker J had this to say at par 46 to par 48:

"[46] It has been held of similar rules that they allow 'fishing' and if an application is bona fide and the circumstances required by the Rules are shown to exist the Court has discretionary power to order the discovery: Clarkson v Director of Public Prosecutions [1990] VicRp 65; [1990] VR 745 at 758. As these are rules of a beneficial nature in appropriate cases full scope should be given to their terms: Paxus Services Ltd v People Bank Pty Ltd (1990) ALR 728 at 733.

[47] The view has been expressed that O 26A r 4(1) is less restrictive than equivalent rules elsewhere in Australia as all that is required to attract its operation is that a person 'may have a cause of action'...I am content for present purposes to proceed on the basis that in this respect the threshold test is no higher than that the plaintiff 'may have a cause of action'...I am not persuaded, however, that it should follow that unless it is shown that the application for an order for discovery is brought vexatiously or with mala fides the application ought to be granted...

[48] It is to be remembered that discovery is a discretionary remedy. According to the circumstances of the case a number of factors may be relevant to the discretion to grant such relief. It does not follow from the circumstance that a power to order relief is drawn widely, so that relief may be obtained where the justice of the case makes that appropriate, that, in the absence of vexation or mala fides it is in the interests of justice to order relief in every case to which the power may be found to extend. As was said of this rule in McCarthy & Ors v Dolpag Pty Ltd [2000] WASCA 106 at [13], per Anderson and Scott JJ. There is no doubt that caution must be exercised before making an order and that such orders should not be made as a matter of course. They should only be made when reasonably necessary to achieve the proper administration of justice: Tipperary Developments Pty Ltd v Western Australia [1999] WASC 62; (1991) 21 WAR 250, per Parker J at 24; O'Sullivan v Herdmans Ltd [1987] 3 All ER 129 at 135-6."

30 The plaintiff said at par 22 of his affidavit that he required the documents referred to in his originating summons to enable him to make a decision as to whether to proceed with litigation.

31 Counsel for the defendant, Mr Willinge, contended that the plaintiff had already obtained sufficient information to enable a decision to be made as to whether or not to take proceedings. He pointed to par 7 of the affidavit which reads as follows:

"I am extremely concerned of the affect on my academic career of such an unanimous statement by the Honours Committee of the University [on 18 December 2000] and feel that it is likely to greatly damage my future career prospects and would pose a very great difficulty for me in finding alternative employment internationally. Effectively my academic career would be finished or greatly damaged if the words published by the Honours Committee of the School of Marketing at Curtin University were to stand without me taking any legal action to clear my name."

32 Counsel for the defendant relied also on a letter from the plaintiff's solicitors to the Executive Dean at Curtin Business School dated 18 September 2001, to reinforce his contention that the plaintiff had already made the decision to commence proceedings. The penultimate paragraph in that letter states:

"We also give notice hereby of our client's intention to institute legal proceedings for defamation."

33 Counsel for the plaintiff answered this by pointing out that in his supporting affidavit the plaintiff affirms that he has not made a decision to commence proceedings. Counsel for the plaintiff said further that in the face of such an assertion it would be wrong for an inference to be drawn about any decision to commence proceedings from the material relied on by Counsel for the defendant.

34 Counsel for the defendant also objected to the plaintiff's application for pre-trial discovery on the basis that the documents sought were irrelevant to the existence of the plaintiff's alleged cause of action in defamation. The defendant asserts in effect that all the plaintiff has to be satisfied of in order to make a decision to commence proceedings is whether or not he has a prima facie case, that is to say, whether he can make out the three necessary elements of defamation; firstly publication; secondly, publication of and concerning the plaintiff and thirdly, words which convey a defamatory meaning.

35 Counsel for the plaintiff quickly reminded me that O 26A does not speak of whether or not there is a cause of action. The jurisdiction to order discovery arises in circumstances where a person who "may have a cause of action" wants to commence proceedings but after reasonable enquiries, has not been able to obtain sufficient information to enable a decision to be made. A solicitor who confined his advice to a potential plaintiff in a defamation case to the question of whether or not the plaintiff could make out a prima facie case would be unwise and possibly negligent.

36 Counsel for the plaintiff went on to say that in defamation cases, proof of a prima facie case is often not a matter of great difficulty. In defamation cases, advice must be given in relation to the potential defences of justification, fair comment, qualified privilege and/or absolute privilege. Advice must also be given as to whether any of the available defences can be defeated by proof of malice or improper purpose. The availability of exemplary damages is also a relevant consideration for a potential plaintiff.

37 In essence, Counsel for the plaintiff submitted that O 26A r 4 goes beyond the question of whether the plaintiff has a good cause of action, or a prima facie case. The rule is directed to information bearing upon the decision to litigate or not. He accepted that there were competing interests and that caution had to be exercised in the application of the rule in order to avoid an incursion affecting the privacy or entitlements of the prospective opposing party. An order could be made subject to certain restrictions: that the documents not be disclosed to any other person; that they be seen by the plaintiff and his legal advisers only, and that they be used for no purpose other than assessing whether or not to commence proceedings.

38 Counsel for the defendant recognised that in a defamation case the question of whether a good defence exists could fall within the scope of the rule. Nonetheless, he submitted, once a potential plaintiff moves beyond the cause of action and begins to look at defences and possible answers to defences, then it must become more and more difficult for such a plaintiff to bring himself within the rule by asserting that the information was necessary to enable a decision to be made. Such a plaintiff would be essentially testing the strength of the opposing case.

39 In relation to the documents at par 1(a) and par 1(b) of the originating summons, counsel for the plaintiff submitted that the documents were relevant to the plaintiff's assessment of the defence of justification, whether or not the primary publication was made on an occasion of qualified privilege, and, if so, whether the publishers were actuated by express malice. He submitted further that the issue of malice had to be considered bearing in mind that the McComish report found no defect with the plaintiff's supervision.

40 Counsel for the defendant responded that any correspondence sent by the student or his mother were not brought into existence by the defendant, and could have no bearing on any alleged cause of action in defamation against the defendant. Further, he submitted that to the extent that the defendant and/or its employees produced any documents as a consequence, these would have no relevance to whether the plaintiff has a cause of action in respect of the words complained of.

41 In relation to the documents at par 1(c) and par 1(d) of the originating summons, counsel for the plaintiff submitted that the minutes go to malice, and aggravated and/or exemplary damages. The McComish report goes to justification, qualified privilege, malice and/or aggravated and exemplary damages.

42 I consider that the plaintiff has satisfied the requirements of O 26A r 4 and is entitled to the relief he seeks.

43 The plaintiff has demonstrated that he is a person who wants to commence proceedings. It is apparent from his affidavit that his wish to litigate is not just a whim or due to vexation. It is referable to legitimate concerns. The decided cases indicate that in weighing up whether to commence proceedings he is entitled to look beyond the constituents of the cause of action and to review the merits of the claim. In my view, in the context of a claim for defamation, the potential plaintiff is entitled to take account of documents bearing upon issues such as justification, fair comment, qualified privilege and malice.

44 I am satisfied in the circumstances of the present case that, after reasonable inquiries, the plaintiff has not been able to obtain sufficient information to make the relevant decision, and that he has not in fact made the decision. I do not consider that giving notice of an intention to commence proceedings, with a view to eliciting a response to the prospective claim, or a possible apology, can be characterised as a firm decision to proceed.

45 I consider that the documents specified in par 1(a) to par 1(d) and in par 1(f) (as amended to apply to the minutes of 31 October 2001) fall within the range of permissible discovery. It is true that some of the documents were not created by the prospective defendant but it is apparent from the description of the documents that, for the reasons outlined by counsel for the plaintiff, they bear upon issues that must be taken into account in deciding whether to advance a claim in defamation in the circumstances of the present case. I will make orders accordingly.