In the Application of Telstra Corp Ltd

[2000] FCA 682

FEDERAL COURT OF AUSTRALIA

In the Application of Telstra Corp Ltd [2000] FCA 682

PRACTICE & PROCEDURE – preliminary discovery – Order 15A of the Rules entitled to liberal construction as a beneficial provision – whether the applicant itself was “some person” in respect of whom an order could be made under Order 15A r 3 in a case where it was forbidden by statute to use its own records to ascertain the identity of the proposed respondent except as “required or authorised by or under law” – whether preliminary discovery should be ordered.

TELECOMMUNICATIONS – effect on ascertainment of name of person provided with telephone service of ss 276, 279, 280 and 281 of Telecommunications Act 1997 – effect of Order 15A r 3 of Federal Court Rules on those provisions.

Telecommunications Act 1997 (Cwth), ss 276, 279, 280, 281
Federal Court Rules, Order 15A r 3

IN THE APPLICATION OF TELSTRA CORPORATION LTD

N 507 of 2000

BURCHETT J
17 MAY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 507 of 2000

IN THE APPLICATION OF:	TELSTRA CORPORATION LIMITED
JUDGE:	BURCHETT J
DATE:	17 MAY 2000
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application by Telstra Corporation Limited under Order 15A, rule 3, the rule commonly referred to as enabling an order to be made for what is called preliminary discovery. 

2. Rule 3 is aimed at remedying the situation of a would-be applicant who cannot commence a substantive proceeding because the respondent to that proceeding cannot be identified.   If, in such a case, "it appears that some person has or is likely to have knowledge of facts, or has or is likely to have ..... possession of any document or thing, tending to assist in" - and I will summarise - ascertainment of the description of a person sufficiently for the purpose of commencing a proceeding in the Court, the Court may make an order under subrule 2.  The order that may so be made may provide for examination of the person or an officer, in the case of a corporation, or for discovery of documents.  The purpose plainly is to enable the information to be used in the commencement and conduct of the proposed action. 

3. The circumstances of the present case are unusual. The identity of the respondent is likely to be, I am satisfied, in Telstra's records as a person provided with a telephone service, but s 276 of the Telecommunications Act 1997 forbids disclosure or use of the information. Although it may be that s 279(1) relieves the applicant from that provision, on the basis that the relevant disclosure and use by an employee would be "in performance of the person's duties as such an employee", the refusal of an employee to take the risk of a breach of a very serious statutory prohibition would clearly be justified. Therefore, in my opinion, Telstra's attempts to ascertain the information without recourse to requiring an employee to reveal it are reasonable. The failure to take that further step does not deny that Telstra has made "reasonable inquiries" for the purposes of rule 3. I am satisfied on the evidence that it has.

4. Section 280 lifts the prohibition where "the disclosure or use is required or authorised by or under law", and s 281 relieves a witness summoned to give evidence or to produce documents. If I grant an order under Order 15A, rule 3 of the Rules of the Federal Court, the disclosure and the use for the purposes I have mentioned will be required or authorised by or under law, within the meaning of that expression as contained in s 280.

5. Can I make such an order on the basis that Telstra itself is a “person” with information or documents within rule 3, from which the information and documents can only be obtained for the purposes of the proposed action if an order is made?  In my opinion, Order 15A is a remedial provision which should be liberally construed.  The expression "some person" is relevantly unqualified, and can extend to the applicant itself.  Accordingly, the application is competent. 

6. I am satisfied that this is a proper case in which to make orders under rule 3, and I make orders in accordance with subrule 2 of that rule as sought in paragraph 1, subparagraphs (a) and (b) of the application,  paragraph 1, being directed to discovery of documents.  And in addition, I make an order under paragraph 2 in respect of the officer of Telstra, Timothy James Barnes, who has given evidence today, to attend before the court to be examined in relation to the description of the person concerned against whom proceedings are proposed.  Certain information has already been given by that officer in evidence in order to prove the knowledge and possession of documents within rule 3, subrule 1.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.

Associate:

Dated:             24 May 2000

Counsel for the Applicant:	Mr M Green
Solicitors for the Applicant:	Mallesons Stephen Jaques
Date of Hearing:	17 May 2000
Date of Judgment:	17 May 2000