Coates v Report Card Pty Ltd - [2019] WASC 221

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   COATES -v- REPORT CARD PTY LTD [2019] WASC 221
CORAM:   LE MIERE J
HEARD:   ON THE PAPERS
DELIVERED          :   26 JUNE 2019
FILE NO/S:   CIV 1267 of 2019
BETWEEN:   SHANNON LOUISE COATES
First Plaintiff
NEIL FREDERICK WARBURTON
Second Plaintiff
EVAN WELCH DAVIES
Third Plaintiff
MICHAEL BRIAN WOLLEY
Fourth Plaintiff
DAVID KENT MCADAM
Fifth Plaintiff
FLINDERS MINES LIMITED
Sixth Plaintiff
AND
REPORT CARD PTY LTD
Defendant

Catchwords:

Practice and procedure - Application for pre-action discovery against potential parties - Whether plaintiffs have a cause of action - Whether the plaintiffs made reasonable inquiries - Whether the plaintiffs have possession of information that will assist - Whether the discretion to order pre-action discovery should be exercised - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 26A r 3

Result:

Plaintiffs' application for pre-action discovery allowed

Category: B

Representation:

Counsel:

First Plaintiff	:	No appearance
Second Plaintiff	:	No appearance
Third Plaintiff	:	No appearance
Fourth Plaintiff	:	No appearance
Fifth Plaintiff	:	No appearance
Sixth Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Squire Patton Boggs
Second Plaintiff	:	Squire Patton Boggs
Third Plaintiff	:	Squire Patton Boggs
Fourth Plaintiff	:	Squire Patton Boggs
Fifth Plaintiff	:	Squire Patton Boggs
Sixth Plaintiff	:	Squire Patton Boggs
Defendant	:	Carmel Galati

Case(s) referred to in decision(s):

Nil

LE MIERE J:

Summary

The plaintiffs have applied for orders for pre-action discovery pursuant to O 26A r 3 of the Rules of the Supreme Court 1971 (RSC).
The first to fifth plaintiffs are directors of the sixth plaintiff, Flinders Mines Ltd. The defendant, Report Card Pty Ltd, owns and maintains a website at the URL (the Forum). The plaintiffs seek an order that the defendant provide to the plaintiffs copies of documents in its possession, custody or power which evidence the registration information, IP address records and the name, address and/or contact details of 23 user names listed in the originating summons (the Users). The defendant does not oppose the orders sought.

Order 26A r 3

Order 26A r 3 empowers the court to order another person (the non‑party) to give discovery to the applicant, to identify a person against whom the applicant appears to have a cause of action (the potential party) where the following conditions are satisfied:
1.The applicant appears to have a cause of action against a person (the potential party);
2.The applicant wants to commence proceedings against the potential party;
3.The applicant has made reasonable enquiries, but has not been able to ascertain a description of the potential party sufficient for the purposes of commencing proceedings against the potential party; and
4.There are reasonable grounds for believing that the non-party had, has, or is likely to have had, or to have, possession of information, documents or any object that may assist in ascertaining the description of the potential party.

Apparent cause of action

The plaintiffs have adduced evidence of the following things. First, the Users have made a number of posts on the Forum. Secondly, it is likely that the posts were accessed and read by at least one other person. Thirdly, the posts refer to, or reasonably would have been understood by readers or viewers to refer to, the first to fifth plaintiffs. Fourthly, the posts are arguably defamatory of those plaintiffs. I am satisfied that the first to fifth plaintiffs appear to have a cause of action against the Users.
The plaintiffs have adduced evidence of the following matters. First, the Users have made posts on the Forum. Secondly, it is likely that the posts have been read or viewed by other persons. Thirdly, the posts arguably are, or contain, a false statement of, or pertaining to, the sixth plaintiff's business. Fourthly, it is arguable that the posts were made with malice, using the occasion for some indirect purpose or indirect motive such as to cause injury to another person. Fifthly, the sixth plaintiff has suffered actual damage as a result of the posts. Accordingly, I am satisfied that the sixth plaintiff appears to have a cause of action against the Users for injurious falsehood.

Plaintiffs want to commence proceedings

The first plaintiff has given evidence that the first to fifth plaintiffs wish to commence proceedings against each of the Users for defamation. I am satisfied that the plaintiffs want to commence proceedings against the Users.

Reasonable enquiries

The first plaintiff's solicitors have written to the defendant requesting access to documents that will reveal the identity of the Users. The defendant has declined to provide that information without a court order. I am satisfied that the plaintiffs have made reasonable enquiries, but have not been able to ascertain a description of the potential parties sufficient for the purposes of commencing proceedings against the Users.

Possession of information

There are reasonable grounds for believing that the defendant has possession of information that will assist the plaintiffs in ascertaining the identity of the Users. First, the defendant is the operator of the Forum. Secondly, the posts were made by the Users. Thirdly, the Forum's Terms of Use state that:
(i)The defendant complies with ASIC Regulatory Guide 162 for Internet discussion sites; and
(ii)Its users '… agree to:
(a)provide true, accurate, current and complete information about [themselves] as prompted by the Service's registration form … and
(b)maintain and promptly update the Registration Data to keep it true, accurate, current and complete.'
Fourthly, ASIC Regulatory Guide 162 requires operators of internet discussion sites (IDS) that are subject to the Regulatory Guide to:
(i)… have reasonably adequate procedures and mechanisms to identify people making or altering postings on the IDS;
(ii)archive and maintain information about the identity of people making postings (eg current email addresses, user names and passwords) for a period of at least six months after their membership changes or ceases; and
(iii)records of actual postings, and session information about the source and path of postings for a period of at least six months.

Other considerations

The plaintiffs have satisfied the conditions to enliven the court's jurisdiction to make an order for pre-action discovery. The application is not opposed by the defendant. The plaintiffs have no effective remedy against the Users if an order is not made. It is appropriate to make the orders sought.

Costs

In the originating summons the plaintiffs seek an order that they pay the defendant's costs in respect of the application and the provision of documents, in accordance with the orders to be made. I will make that order together with liberty to apply in relation to the quantification and payment of those costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MS
Associate to the Honourable Justice Le Miere
26 JUNE 2019