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Szymczak v Balijepall [2019] FCA 234 | Case summary | Zoe

CTHFCA

Szymczak v Balijepall

[2019] FCA 234

Federal Court of Australia|2019-02-15|Before: Mr J, Lee J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2019-02-15

Before

Mr J, Lee J

Source

Original judgment source is linked above.

Judgment (2 paragraphs)

[1]

THE COURT ORDERS THAT:

Ananth Balijepalli attend before the Court at 10.15 am on 18 March 2019 to be examined orally about the description of any person who participated in the publication of an email dated 6 May 2018, that is Schedule A to the statement of claim in this proceeding (the Email), being a Prospective Respondent; and
Ananth Balijepalli on or before 18 March 2019 produce to the Court any document or thing in Ananth Balijepalli's control relating to the Email, the Email Recipients or containing the Prospective Respondent's description, including: (i) the device used to send the Email on 6 May 2018; (ii) any device used that received or retained the list of the recipients to whom the Email was sent (the Recipients); and (iii) any communication between Ananth Balijepalli and any person relating to the Email, the list of the Recipients or any other communication intended to be sent to the Recipients.
Ananth Balijepalli on or before 18 March 2019 give discovery to the Prospective Applicant of all documents that are or have been in Ananth Balijepalli's control relating to the Email, the Recipients or containing the Prospective Respondent's description, including: (i) the device used to send the Email on 6 May 2018; (ii) any device used that received or retained the list of the Recipients; and (iii) any communication between Ananth Balijepalli and any person relating to the Email, the list of the Recipients or any other communication intended to be sent to the Recipients.
Costs reserved.
The matter be listed for an interlocutory hearing at 10.15am on 18 March 2019. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

LEE J: 1 The applicant is the chief operating officer of United Petroleum Pty Ltd (United Petroleum) and alleges that in May 2018, the respondent sent an anonymous email to over 600 recipients on the United Petroleum email system, including all employees, franchisees and commission agents, conveying defamatory comments. The detail of the publications and the imputations said to be conveyed are unnecessary to detail for present purposes. The applicant claims damages, including aggravated damages and seeks an order that the respondent be permanently restrained from publishing the matter complained of or any matter to the same effect. 2 The evidence establishes that the statement of claim and originating application were served on the respondent on the evening of 21 December 2018. No appearance has been filed on behalf of the respondent. On 4 February 2019, the respondent was also served with an interlocutory application. The interlocutory application was listed for hearing today and when the matter was called on the respondent did not appear, notwithstanding that the proceeding was called outside Court three times. 3 The applicant moves on an interlocutory application which seeks orders that the respondent attend Court to be examined orally about the description of any persons who participated in the publication of the email and produce to the Court any document or thing in his control which identifies what are described in the interlocutory application as "prospective respondents". 4 In order to understand why this application is made, it is necessary to explain a further matter: at the conclusion of the email, the following appears: Carefully (sic) Note: "This email is composed by 40+ operators (Franchisees/CA's)" 5 The contention of the applicant is that notwithstanding the existence of a proceeding against the respondent, he falls within the definition of a "prospective applicant" in FCR 7.21, which provides for preliminary discovery in this Court. It is useful to set out the definitions of both "preliminary applicant" and "preliminary respondent" for the purposes of this rule: 7.21 Definitions for Division 7.3 In this Division: prospective applicant means a person who reasonably believes that there may be a right for the person to obtain relief against another person who is not presently a party to a proceeding in the Court. prospective respondent means a person, not presently a party to a proceeding in the Court, against whom a prospective applicant reasonably believes the prospective applicant may have a right to obtain relief. (Emphasis added) 6 The definitions draw a distinction between a prospective respondent (being somebody who is not the subject of existing proceedings) and prospective applicant (which contains no such restriction). 7 FCR 7.22 further provides: Order for discovery to ascertain description of respondent (1) A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant satisfies the Court that: (a) there may be a right for the prospective applicant to obtain relief against a prospective respondent; and (b) the prospective applicant is unable to ascertain the description of the prospective respondent; and (c) another person (the other person): (i) knows or is likely to know the prospective respondent's description; or (ii) has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the prospective respondent's description. (2) If the Court is satisfied of the matters mentioned in subrule (1), the Court may order the other person: (a) to attend before the Court to be examined orally only about the prospective respondent's description; and (b) to produce to the Court at that examination any document or thing in the person's control relating to the prospective respondent's description; and (c) to give discovery to the prospective applicant of all documents that are or have been in the person's control relating to the prospective respondent's description. … 8 It is well-established that FCR 7.22 supplements the power that is available under the general law to award preliminary discovery to disclose the name of an alleged wrongdoer: see Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133. The procedure, of course, originated in the bill of discovery to ascertain the identity of a prospective defendant. In its auxiliary jurisdiction, equity had a power, even in respect of actions at law which had already commenced, to order discovery of the type sought, that is, as to documents which would reveal the identity of a proposed respondent: see Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed, Butterworths, 2014) at 31 [1-295]. 9 FCR 7.22 requires the prospective applicant to satisfy the Court that: (a) there may be a right for the prospective applicant to obtain relief against the prospective respondents; (b) the prospective applicant is unable to ascertain the description of the prospective respondents; and (c) another person, in this case, the respondent to the existing proceeding, knows or is likely to know that description or has or is likely to have, or has had or is likely to have had, control of a document which would help ascertain that description. Finally, it is necessary that the Court be satisfied the interests of justice call for the making for such an order: see Hooper v Kirella Pty Limited [1999] FCA 1584; (1999) 96 FCR 1 at 11 [34]. As can be seen, unlike the equivalent rule under the old Federal Court Rules, there is now no express requirement of reasonable inquiries having been made by the prospective applicant, although it is very difficult to understand why any order would be made without reasonable inquiries having been undertaken prior to an application being made. 10 The evidence of Mr McLean satisfies me of the fact that the applicant and, to the extent relevant his employer, have not been able to ascertain the description of the prospective respondents despite reasonable endeavours. I am also satisfied that there may be a right to obtain relief against the prospective respondents and the current respondent knows or is likely to know, or has control of a document which would help ascertain the description of the prospective respondents. Finally, I am satisfied the interests of justice call for the making of an order for preliminary discovery. 11 There does not seem to me to be any reason why I should read FCR 7.22 in such a way as to prevent the relief sought being granted, notwithstanding the fact that proceedings have already been commenced against one ascertained respondent. To the extent that I am wrong about the construction of the rule, I consider that the order is appropriate in the interests of justice in accordance with FCR 1.32 and, if it was necessary to do so, I would dispense with compliance with the rules and make the order in the exercise of the Court's equitable jurisdiction. 12 For these reasons I propose to grant the relief identified in prayers A, B and C of the interlocutory application. I will reserve the question of costs of the application. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.