iSAM Securities (UK) Ltd v Press

[2024] NSWSC 1036

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

iSAM Securities (UK) Ltd v Press [2024] NSWSC 1036

Hearing dates:

13 August 2024

Date of orders:

19 August 2024

Decision date:

19 August 2024

Jurisdiction:

Equity

Before:

Richmond J

Decision:

See [82]

Catchwords:

CIVIL PROCEDURE — Preliminary discovery — To identify potential defendant — Order for examination — Reasonable inquiries — Exercise of discretion — Whether prospective proceedings are speculative — Whether categories for discovery are too broad — Orders made for discovery under Uniform Civil Procedure Rules 2005 (NSW), r 5.2

CIVIL PROCEDURE — Preliminary discovery — To identify potential cause of action — Whether the plaintiffs have already decided to commence proceedings — Whether scope of discovery too broad — Orders made for discovery under Uniform Civil Procedure Rules 2005 (NSW), r 5.3

Legislation Cited:

Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Age Co Ltd v Liu [2013] 82 NSWLR 268

Bohemia Crystal Pty Ltd v Host Corporation Pty Ltd [2018] FCA 235

Brick Lane Brewing Co Pty Ltd v Torquay Beverage Co Pty Ltd [2023] FCA 66

Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70

Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69

Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre (1978) 140 CLR 216

Morton v Nylex Ltd [2007] NSWSC 562

Muscat v Qin [2024] NSWSC 113

O'Connor v O'Connor [2018] NSWCA 214

Pritchard Lees Pty Ltd v Heather [2013] NSWSC 1521

Racing New South Wales v Racing Victoria (No 2) [2023] NSWSC 576

Roads & Traffic Authority (NSW) v Australian National Car Parks Pty Ltd [2007] NSWCA 114

Roads & Traffic Authority (NSW) v Care Park Pty Ltd [2012] NSWCA 35

Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 97 ALJR 388; [2023] HCA 8

Stewart v Miller [1979] 2 NSWLR 128

Yorke v Lucas (1985) 158 CLR 661

Category:

Procedural rulings

Parties:

iSAM Securities (UK) Limited (First Plaintiff)
iSAM Securities (HK) Limited (Second Plaintiff)
iSAM Securities (Global) Limited (Third Plaintiff)
iSAM Securities (USA) Inc (Fourth Plaintiff)
Matthew Press (First Defendant)
Forexco Australia Pty Ltd (Second Defendant)

Representation:

Counsel:
C Bova SC / Z Graus (Plaintiffs)
O Jones / C Beshara (Defendants)

Solicitors:
Corrs Chambers Westgarth (Plaintiffs)
O’Loughlin Westhoff (Defendants)

File Number(s):

2024/00263578

Publication restriction:

Nil

JUDGMENT

1. Before the Court is an application by the plaintiffs for orders for preliminary discovery against the first defendant, Matthew Press (Mr Press), and the second defendant, Forexco Australia Pty Ltd (Forexco Australia), pursuant to rules 5.2 and 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or the inherent jurisdiction of the Court.

2. The plaintiffs seek these orders to ascertain the identity of prospective defendants against whom they are considering bringing proceedings for misleading or deceptive conduct in breach of s 18 of the Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law (ACL), and for the purposes of deciding whether or not to commence proceedings against Mr Press as a person involved in the relevant conduct which breaches s 18. The relevant conduct is the use by entities trading under the business name ‘PTX Markets’ of the plaintiffs’ product pricing information, including with the symbol or prefix ‘IDX’, which the plaintiffs allege has the tendency to suggest to relevant consumers that those entities are associated with the plaintiffs, when they are not.

Background

3. The following summary of the factual background is drawn from the affidavit of Mr Samuel Johnson, the managing director of the first plaintiff, iSAM Securities (UK) Limited, who was not cross-examined.

Plaintiffs’ business

4. The plaintiffs are members of a group of related companies (which, for convenience I will refer to collectively as iSAM) providing liquidity, brokerage, technology and risk management services globally. Relevantly for this proceeding, iSAM's business involves providing pricing and ‘liquidity’ (that is, the ability for their clients to trade) in respect of foreign exchange spot transactions, indices (involving taking a position on a share index), and commodities products to its clients who are retail brokers. iSAM's business model is in effect, to bridge the gap between large banking and financial institutions (who themselves provide liquidity) (Tier 1 LPs), and retail brokers, who ‘consume’ liquidity (that is, enter into trades) for the purpose of offering trading services to their retail client end-users. iSAM competes with a number of other ‘liquidity providers’ (LPs) who also aggregate pricing for a liquidity pool of different Tier 1 LPs to create a single price able to be traded upon by retail brokers. The retail clients of the retail brokers are too small to be able to deal directly with LPs such as iSAM.

5. iSAM competes with other LPs by offering its own unique pricing to its retail broker clients (iSAM's Pricing). The retail broker clients of iSAM enter into a liquidity agreement with iSAM, whereby the retail broker pays a fee to iSAM in exchange for the ability to access and consume iSAM's Pricing and liquidity. The retail broker may then, in turn and with iSAM's agreement, use iSAM's Pricing to offer a trading service to its own customers. Each liquidity agreement governs the terms on which iSAM's Pricing is able to be used by that broker.

6. Although retail brokers may choose to contract with more than one LP (for example, because particular LPs may specialise in different financial products to other LPs), a retail broker would not ordinarily sign up with more than three to four LPs at any one time due to the associated costs. A retail broker would generally have no need to contract with more than one LP who offered the same products and pricing.

7. Retail brokers access the pricing from a LP via a piece of software commonly referred to as a ‘liquidity bridge’ and then make this pricing (sometimes after applying their own adjustments) available to the end consumer via trading platform software, usually industry standard ‘MetaTrader’ software platforms (including what are known as the ‘MT4’ and ‘MT5’ platforms). Each retail broker has its own liquidity bridge (which is typically provided by a third-party provider), and through that platform is able to access and trade upon the pricing of the LPs with which they have an agreement. A retail broker cannot access or view the pricing offered by a LP with which it does not have a liquidity agreement.

8. When iSAM's Pricing is displayed to a retail client through a liquidity bridge, iSAM's designated 'symbol' (being a combination of letters and numbers) for each product is also displayed. The symbol allows a retail broker to identify the relevant financial product to which the pricing attaches and identifies iSAM as the source of the relevant pricing. iSAM's symbol in respect of the twelve products it refers to as 'index swaps' is distinctive from symbols used by other LPs. This is because it is generally more common for LPs to refer to 'index swaps' as 'contracts for difference' (or CFDs), and according to Mr Johnson, iSAM is the only LP to use the prefix ‘IDX’ for its index swap products. In contrast, iSAM’s symbols for its foreign exchange and commodities products (of which there are around 125) appear to be more descriptive in nature (CB 274).

9. iSAM's Pricing is calculated through an aggregation of the pricing available from its liquidity pool of approximately ten Tier 1 LPs at any one time. The performance of the Tier 1 LPs making up the relevant pool is actively monitored, and the pool of Tier 1 LPs is subject to change from time to time by iSAM, usually in light of the competitiveness of pricing and reliability of execution (i.e., the successful completion of trades at or around the prices quoted). In order to produce iSAM's Pricing, the 'raw' pricing received from the Tier 1 LPs is also processed in various ways to make it consumable by the retail brokers. This is achieved by automated systems designed and maintained by iSAM which are optimised to deliver competitive pricing and reliable execution to iSAM's retail broker clients. The relevant algorithms and processes applied in order to calculate iSAM's Pricing are not disclosed by iSAM to third parties and are regarded by iSAM as proprietary in nature. iSAM utilises the different prices it obtains from the price feeds of the various Tier 1 LPs to create iSAM's Pricing, being a price feed comprising a single price for each product which it then makes available to its clients through a liquidity bridge, and which is capable of being traded upon by them.

10. iSAM's commercial arrangements for the provision of its pricing vary from client to client. In some cases, iSAM allows a retail broker client to 'recycle' iSAM's Pricing and provide it to other retail brokers (also referred to as 'white labelling'). In effect, this allows those clients (Recycling Brokers) to act as LPs themselves. Typically, when this occurs, the Recycling Broker client will add their own mark-up to iSAM's Pricing to produce their own price feed that is derived from, but not identical to, iSAM's Pricing. In doing so, the Recycling Broker may use iSAM's 'symbols' for each financial product offered, or they may choose to use their own naming conventions. This arrangement can be commercially advantageous to iSAM, because it not only increases the number of retail broker clients who have liquidity arrangements with iSAM, but iSAM is also able to make a profit on the fee it charges a Recycling Broker for use of iSAM's Pricing.

Relationship between iSAM and Mr Press

11. In around July 2019, iSAM entered into a consultancy agreement with Mr Press and Forexco Australia, pursuant to which Mr Press and Forexco Australia were engaged to provide certain services to iSAM (Consultancy Agreement). Part of Mr Press' role was to assist Forexco Australia to promote the revenue growth of iSAM, including by finding new retail broker clients in the Australian market for iSAM. The Consultancy Agreement came to an end, at the latest, in November 2023, and since that time iSAM has had no business association with Mr Press and Forexco Australia. The Consultancy Agreement, which is governed by English law and contains an exclusive jurisdiction clause in favour of English courts, includes a post termination restraint for a period of six months against Mr Press and Forexco Australia competing with iSAM.

Emergence of PTX Markets

12. In early December 2023, Mr Johnson first became aware of a competitor business, calling itself ‘PTX Markets’ (PTX), in discussions had with a prospective retail broker client, ETO Markets. ETO Markets is now a retail broker client of PTX. PTX appeared to be offering similar liquidity services to those offered by iSAM, in that it was acting as a LP and providing liquidity services to retail brokers. Shortly afterwards, Mr Johnson became aware of a suggestion that Mr Press may have some involvement with PTX and was in competition with iSAM, but Mr Press denied this.

13. In late February 2024, the plaintiffs received further information from a retail broker in Sydney, Dolphin Markets, which suggested that Mr Press was marketing to brokers the services of PTX in a manner which appeared to be competing with iSAM. As a result of this information, Mr Johnson instructed one of iSAM's employees (Mr Phil Kim) who was already travelling to Australia in March, to make inquiries in the Australian market with respect to Mr Press and PTX. On 25 March 2024, Mr Kim wrote an email to Mr Johnson setting out the results of his inquiries while in Australia, which included discussions with Mr Dan Bent of Infinium Solutions, another market participant. Mr Bent brought up his concern that PTX was related to iSAM and mentioned that he recognised that the naming conventions on the MT4 software for products offered by iSAM and PTX were identical.

14. On 22 April 2024, Mr Johnson received a copy of a screenshot from the liquidity bridge of ETO Markets, a retail broker client of PTX, which showed the ‘symbol’ of ‘IDX.UK.100’ being displayed as PTX's subscription code for a swap involving the FTSE100 index. The prefix ‘IDX’ for index swap products of this kind is a naming convention used by iSAM as noted earlier.

15. Mr Johnson became immediately concerned that the use of iSAM's unique symbols by PTX suggested that PTX was using iSAM's Pricing and feeding it to its own retail broker clients. Mr Johnson deposed that the reason for this was that all LPs, including iSAM, supply pricing to their clients under their designated symbols and for PTX to be showing pricing with iSAM’s symbols (particularly ‘IDX’) strongly indicated that the underlying pricing was iSAM’s Pricing.

16. Mr Johnson deposed that he did not know how, at the time the screenshot was taken on 22 April 2024, PTX was obtaining iSAM’s Pricing. An entity associated with Mr Press, SRW Global Ltd (SRW Global), had previously been one of iSAM’s clients, but this relationship ceased in February 2024. Mr Johnson deposed that there were at least four possible explanations, and he is presently unable to determine which is correct:

a. that PTX still had access to the iSAM’s Pricing by some other means since SRW Global’s offboarding (for example, from one of the plaintiffs’ other clients);

b. that PTX was using different pricing after SRW Global’s offboarding in February 2024 but opted to keep using the plaintiff’s symbols;

c. that PTX sourced the iSAM’s Pricing from someone other than SRW Global in the first place; or

d. that PTX had procured and was supplying pricing from another source but had opted to ‘re-name’ such pricing, using the plaintiff’s symbols.

Correspondence between iSAM and the defendants

17. Shortly after the screenshot was received from ETO Markets, iSAM’s solicitors in the United Kingdom, Harbottle & Lewis (H&L) sent a letter to the defendants dated 24 April 2024 raising allegations that the defendants were in breach of the Consultancy Agreement. The letter states that it is a ‘letter before claim’ in accordance with the Practice Direction on Pre-Action Conduct and Protocols (the Practice Direction) contained in The Civil Procedure Rules 1998 (UK) c 12 of the United Kingdom, and notes that the failure by Mr Press to respond by the specified deadline ‘may result in an application being made to the Court, without further reference to you. We suggest you urgently seek English legal advice’.

18. The letter then sets out what are described as ‘flagrant breaches of the obligations and restrictions set out in the Consultancy Agreement’ and adds that while the plaintiffs are continuing to investigate matters, ‘it is already apparent that serious wrongdoing has occurred as provisionally detailed below’. There follows various allegations regarding the conduct of activities under the PTX business name, including allegations that the defendants have been providing to their clients access to iSAM’s Pricing and passing it off as their own in breach of the Consultancy Agreement (by reference to the screenshot taken on 22 April 2024) and misuse of iSAM’s confidential information.

19. The letter set out eight ‘actions’ which H&L required the defendants to take. It appears that the defendants did not respond to any of these action requirements, except ‘action 4’ which required PTX to change the MetaTrader symbols used by PTX to distinguish them from iSAM’s symbols. It appears that PTX did remove references to ‘IDX’ from its symbols used to price its products on around 15 May 2024 after this letter was sent (CB 315).

20. The H&L letter then concluded as follows, under the heading ‘Next steps’:

8.1 You are required to undertake ACTIONS 1-8 described above promptly and in accordance with the deadlines specified. We await receipt of the documentation requested, and undertakings sought. In the event that we do not hear from you accordingly, this matter will escalate, as indicated above.

8.2 All our clients’ rights, and rights to all remedies, are expressly reserved, including their right to make a complaint to any competent regulatory body in respect of your conduct.

8.3 Relevant to this, you will have noted references in this letter to potential action being taken against you in Australia, where you reside. To this end, we confirm that our client has also instructed Australian lawyers to pursue appropriate action against you in your home jurisdiction. You will be hearing from them shortly, we understand.

8.4 We suggest you seek independent legal advice.

21. On 26 April 2024, Corrs Chambers Westgarth (Corrs), the plaintiffs’ Australian solicitors, sent a letter to the defendants which attached a copy of the H&L letter of 24 April 2024 and stated that it outlines ‘very serious misconduct by you, which our client believes may entitle it – or its related entities – to pursue injunctive relief, declaratory relief, statutory compensation, damages, costs and/or interest on various grounds’, including contravention of the Corporations Act 2001 (Cth), the Australian Securities and Investments Commission Act 2001 (Cth) and the ACL. The Corrs letter went on to state that Corrs had been instructed to investigate all available avenues to preserve and vindicate the plaintiffs’ rights and, as ‘the full extent of your wrongdoing is currently unknown and subject to continued investigation by our client and that in order to provide our client with sufficient information to decide whether to commence proceedings and/or to determine the identify of prospective respondents to such proceedings’, a request was made that the defendants provide the information sought in particular identified paragraphs of the H&L letter of 24 April 2024. In relation to a potential proceeding under the ACL, the Corrs letter states:

Australian Consumer Law

11. We refer to the section of the H&L Letter titled ‘Activities of PTX Markets’. On information currently available, the misconduct described therein appears to involve conduct outside Australia by bodies corporate carrying on business within Australia (within section 5 of the CCA). Our client believes this may entitle it to obtain relief for:

a. Conduct that is misleading or deceptive or is likely to mislead or deceive, contrary to section 18 of the ACL; and/or

b. Unconscionable conduct contrary to section 21 of the ACL

12. If our client pursues proceedings against you in respect of these contraventions, it would be entitled to seek an injunction, declaratory relief, damages and/or other relief the court think appropriate, together with costs and interest. As outlined in the H&L Letter, our client’s losses are substantial and will continue to accrue should you fail to comply with the actions outlined by H&L.

13. Further, to the extent that your misconduct described in ‘Diverting business’ is not characterised as having occurred in the course of providing financial services, then the ACL would apply and breaches of section 18 and/or 21 accordingly may arise.

Next steps

14. Should you fail to undertake the actions outlined in the H&L Letter promptly and in accordance with the deadlines specified, our client expressly reserves its rights to initiate proceedings in Australia against you without further notice, seeking such relief as may be appropriate (including injunctive relief to restrain continuing contravention of the ACL, Corporations Act and/or ASIC Act and damages).

22. On 2 May 2024 the then solicitors for the defendants, HWL Ebsworth (HWL), responded to H&L by a letter denying any breach of the Consultancy Agreement and requiring H&L to disclose the evidence it was relying on. Also on 6 May 2024, HWL responded to Corrs by a letter denying a breach of, relevantly, the ACL.

22. On 9 May 2024, H&L sent a further letter to HWL which, after referring to ‘your clients’ breaches of their obligations under the Consultancy Agreement went on (emphasis added):

Our clients are not obliged to provide disclosure or to further evidence their case at this stage. Relevant to this were the express observations in the Letter Before Claim that: (a) much of the relevant material will be within your possession or control; and (b) our clients’ investigations are ongoing. (Indeed, in addition to the evidence referenced in the Letter Before Claim, our clients have subsequently obtained further written evidence from one their clients (which is also a client of PTX) that PTX has been and is continuing to offer full FX liquidity, in direct competition with out clients.) It is correct that the evidential picture is still emerging, and that the full extent of your clients’ wrongdoing is not yet known to our clients. It would be a mistake on your clients’ part to believe that this, and the fact that our clients (prudently) are not prepared to identify their sources and witnesses at this stage, means that our clients cannot and will not pursue this matter and seek appropriate remedies from the Court.

A mistaken belief of that nature appears to underly your clients’ refusal to take any of the 8 Actions required of them in the Letter Before Claim. (Even the limited confirmation you have provided regarding document preservation falls well short of what was requested.) Your clients had an opportunity, in taking the required Actions, to mitigate the damage caused to our client and to forestall the need for proceedings. They have spurned that opportunity, with the result that our clients have no option but to escalate matters. To that end (inter alia) leading Counsel has been instructed, with a view to preparation of Particulars of Claim.

All our clients’ rights remain expressly reserved in all respects. We shall draw all relevant conduct and correspondence to the attention of the Court on the issue of costs and otherwise.

24. HWL responded by letter dated 13 May 2024, which after noting the statement in the H&L letter that particulars of claim were now being prepared, went on to state that the commencement of proceedings by the plaintiffs would be premature given the matters raised in their letter. H&L responded by letter dated 16 May 2024 (emphasis added):

Your reference to the Practice Direction on pre-action conduct is misconceived. Contrary to your assertion, your client has declined to engage with the substance of our client’s claims. Your correspondence to date does not constitute a proper Response to the Letter Before Claim, and indicates that no such Response will be forthcoming. Your client’s position is one of bare denial. Moreover, your client has refused to take any of the actions requested of him.

As such, it would appear that the pre-action correspondence has run its course. Our clients are proceeding accordingly and their position is unchanged.

In practice, your client has a short window in which to adopt a different stance and engage with our clients. However, further correspondence of the sort sent to us to date will not forestall escalation of this matter.

All of our clients’ rights remain expressly reserved in all respects. We shall draw all relevant conduct and correspondence to the attention of the Court on the issue of costs and otherwise.

25. On 17 May 2024, Corrs sent a further letter to HWL responding to that firm’s letter dated 6 May 2024, repeating the requests made for information sought in the H&L letter of 24 April 2024 and adding:

We are instructed to begin preparation of an application for preliminary discovery to provide our client with sufficient information to decide whether to commence proceedings and/or to determine the identity of prospective respondent(s) to such proceedings. We will make that application without further notice to you should the information requested not be forthcoming.

26. The letter ended by the statement that ‘Our client’s rights remain reserved’.

27. Despite the reference in the H&L letters to escalation of the matter if the defendants failed to engage with the requests made, no proceedings have been commenced in the United Kingdom or Australia in respect of the matters raised by either H&L or Corrs in this correspondence, other than this proceeding seeking preliminary discovery.

Further investigation

28. Mr Johnson’s affidavit sets out the various enquiries which the plaintiffs have undertaken to establish the identity of the entity or entities conducting business under the name PTX, and how its pricing information has been accessed by PTX. This included engaging RSM Australia Pty Ltd (RSM) to conduct a forensic investigation to determine the association of the defendants with entities calling themselves PTX, and which entity or entities calling themselves PTX are using iSAM’s Pricing, and from which entity or entities that pricing was obtained. RSM’s report dated 26 June 2024 could not answer the last two questions, but in relation to the first, RSM concluded that the business name ‘PTX Markets’ is owned by a Vanuatu entity, Forexco International Limited of which Mr Press is a director, and he has a connection with a Vanuatu company called Prime Trading Services Pty Ltd which has previously traded as PTX Markets.

29. There appear to be at least two other companies which have traded as PTX Markets, being Prime Trading Services Pty Ltd (registered in St Vincent & The Grenadines) and Prime Treasury Services Pty Ltd (an Australian company). Mr Press is a director of the latter, but his connection with the former is unclear.

30. Mr Johnson deposes that on 17 June 2024, Mr Campbell Sedy from Titan FX (a foreign exchange, metal and commodities broker) provided the plaintiffs with an excel spreadsheet entitled ‘PTX Product Schedule’ which contained 11 index swap products that used an ‘IDX’ symbol. Mr Sedy told the plaintiffs that he had thought that PTX was using iSAM’s pricing because ‘their index products had your exact naming structure’.

Preliminary discovery to ascertain identity of prospective defendants

31. Pursuant to an amended summons filed in Court on 13 August 2024, the plaintiffs seek under rule 5.2 of the UCPR or the inherent jurisdiction of the Court the following orders:

7. An order pursuant to rule 5.2(2)(a) of the UCPR or the inherent jurisdiction of the Court that the First Defendant attend the Court to be examined before a Registrar of this Court as to the identity of the person, persons, entity or entities:

a.   offering, supplying or making available services under the business name "PTX Markets" or through the website, URL: ptxmarkets.com.

b.   supplying, receiving or using the plaintiffs' product pricing information or symbols, including but not limited to price feed information with the prefix "IDX".

8. An order pursuant to rule 5.2(2)(b) of the UCPR or the inherent jurisdiction of the Court that within 7 days of the date of this order, the Defendants give discovery to the Plaintiffs, of:

a.   all documents in the Defendants' possession created, dated or received during the period 1 July 2021 to date, relating to the identity of the person, persons, entity or entities offering, supplying or making available services under the business name "PTX Markets" or through the website, URL: ptxmarkets.com.

b.   all documents in the Defendants' possession created, dated or received during the period 1 July 2021 to date relating to the identity of the person, persons, entity or entities supplying, receiving or using the plaintiffs' product pricing information or symbols, including but not limited to price feed information with the prefix "IDX".

32. Rule 5.2 of the UCPR provides relevantly:

(1)   This rule applies if it appears to the court that -

(a)   the applicant, having made reasonable inquiries, is unable to sufficiently ascertain the identity or whereabouts of a person ("the person concerned") for the purpose of commencing proceedings against the person, and

(b)   some person other than the applicant ("the other person") may have information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the person concerned.

(2)   The court may make either or both of the following orders against the other person -

(a)   an order that the other person attend the court to be examined as to the identity or whereabouts of the person concerned,

(b)   an order that the other person must give discovery to the applicant of all documents that are or have been in the other person's possession and that relate to the identity or whereabouts of the person concerned.

…

33. Under r 5.1 of the UCPR, the expression ‘identity or whereabouts’ is defined to include ‘the name (as applicable), the place of residence, registered office, place of business or other whereabouts, and the occupation and sex, of the person against whom the applicant desires to bring proceedings, and also whether that person is an individual or a corporation.’

34. Prayer 7 seeks to engage r 5.2(2)(a) by requiring the first defendant, Mr Press, to attend Court to be examined before a Registrar and prayer 8 seeks to engage r 5.2(2)(b) by requiring the provision of documents, in each case for the purpose of ascertaining the identity of the unidentified defendants to the proposed claim to be brought by the plaintiffs under s 18 of the ACL. Reliance is placed in the alternative on the common law doctrines of preliminary discovery which are preserved through r 1.4 of the UCPR and the inherent jurisdiction of the Court.

35. The structure of prayers 7 and 8 is also explained on the basis that the plaintiffs seek to identify two categories of potential defendants: (a) the person or persons who made available financial products and services under the name ‘PTX Markets’; and (b) the person or persons who supplied, received or used the plaintiffs’ product pricing information in connection with the activities referred to in (a). The first category would be subject to a claim for breach of s 18 and the second category would be subject to a claim for knowing involvement in that breach.

36. In order to obtain an order for preliminary discovery as to the identity of a potential defendant under r 5.2, the plaintiffs need to satisfy five requirements:

1. The plaintiffs must have a desire to commence proceedings against as yet presently unidentified defendants, which must be a genuinely held and objectively based desire, albeit one which might be abandoned for good reason later discovered by them: Roads & Traffic Authority (NSW) v Care Park Pty Ltd [2012] NSWCA 35 at [106] and [119]. A ‘desire’ is to be characterised as something less fixed than an intention or purpose: Care Park at [113]. In its ordinary meaning, a ‘desire’ is ‘a strong feeling of wanting to have something or wishing for something to happen’ (Oxford English Dictionary, online ed, August 2024).

2. The plaintiffs must have made reasonable enquiries to ascertain the identity of the unidentified defendants. What is reasonable is a question of fact in all the circumstances, and the cost, delay and uncertainty of alternative measures is relevant. The availability of other means of ascertaining the identify of a defendant does not in itself make it unreasonable to seek preliminary discovery: Roads & Traffic Authority (NSW) v Australian National Car Parks Pty Ltd [2007] NSWCA 114 at [14].

3. The plaintiffs must have been unable to sufficiently ascertain the identity of the unidentified defendants. This directs attention to the information that the plaintiffs’ reasonable enquiries to date have produced regarding the unidentified defendants, with the focus being on the objective sufficiency of the possessed information to fulfil the purpose of commencing proceedings to which the Court must have regard: Care Park at [96]-[97].

4. The defendants may have information that tends to assist in ascertaining the identity of the unidentified defendants. This is directed to whether the information sought has the requisite tendency of assisting in identifying the relevant unidentified defendants, but the words ‘may’ and ‘tends to assist’ show that the plaintiffs do not have to establish in advance that the documents sought will necessarily reveal the identity of the prospective defendants: Australian National Car Parks at [16].

5. Whether the Court, in the exercise of its discretion, should make an order under r 5.2. The Court retains a discretion whether or not to make an order under r 5.2, which is to be exercised judicially and with regard to the case management provisions of the Civil Procedure Act 2005 (NSW) and the UCPR. While it is relevant to the exercise of the Court’s discretion whether the plaintiffs have a prima facie case against the unidentified defendants, there is no requirement that the applicant establish a prima facie case: Australian National Car Parks at [13]; Age Co Ltd v Liu [2013] 82 NSWLR 268 at [89]. However, if the claim to be brought is speculative, the discretion would not be exercised: Stewart v Miller [1979] 2 NSWLR 128 at 139-140.

37. It is also necessary that any order made pursuant to r 5.2 is limited to the information which is objectively necessary, in regard to the rules of Court, to enable proceedings to be commenced: The Age at [88]; Care Park at [97].

38. I will turn now to the application of each of these requirements to the facts of the present case.

Whether the plaintiffs have a desire to commence proceedings against presently unidentified defendants?

39. In relation to the first requirement, Mr Johnson’s evidence is that the plaintiffs are considering commencing a proceeding against the unidentified defendants, and Mr Press, for breaches of the prohibition on misleading or deceptive conduct in s 18 of the ACL. The allegation is that the unidentified defendants have conducted a business under the name ‘PTX Markets’ in a manner which has the tendency to suggest to consumers that PTX Markets is associated with, or in fact is, the plaintiffs, through the use of the plaintiffs’ pricing in conjunction with symbols denoting its products (in particular the symbol IDX). It is also alleged that Mr Press was knowingly involved in that conduct and therefore potentially liable under s 236 of the ACL. While it is true that Mr Johnson only says that the plaintiffs are considering commencing such proceedings, the uncertainty relates to the identity of the entities responsible for the relevant conduct, how those entities obtained the plaintiffs’ pricing and/or symbols and the extent of their use of that material. These matters are the subject of the application for preliminary discovery under r 5.2. Mr Johnson also gives evidence that he is particularly concerned that this conduct has resulted in significant harm to the plaintiffs because the relevant entities using the PTX name have been representing through their use of the iSAM symbols and pricing, that they are affiliated with the plaintiffs while operating a competing business, thereby causing damage to its brand and business in Australia.

40. In my opinion, this evidence together with the enquiries made to deal with the areas of uncertainty mentioned in the previous paragraph and the correspondence sent by the plaintiffs’ solicitors to the defendants referred to earlier, indicates a genuine and objectively based desire on the part of the plaintiffs to commence proceedings against the entities which have engaged in the alleged conduct for breach of s 18 of the ACL, and Mr Press as a person knowingly involved. That the desire is conditional in the sense that whether proceedings are ultimately brought depends on the clarification of these uncertain matters, does not indicate that the desire does not exist, but rather that it might be abandoned as a result of information provided pursuant to the orders sought by way of preliminary discovery. For these reasons, the first requirement is satisfied.

Whether the plaintiffs have made reasonable enquiries to ascertain the identity of the unidentified defendants?

41. As to the second requirement, Mr Johnson gives evidence about the enquiries which have been made, as mentioned above. The defendants submit that the plaintiffs have failed to make reasonable enquiries in two respects. First, Mr Johnson failed to instruct any of the plaintiffs’ employees to check with any of iSAM’s past or present clients as to whether they have been approached by anyone at PTX claiming to be associated with iSAM. While it did approach one retail broker, ETO Markets, which became a client of PTX, it failed to ask that broker which legal entity using the PTX name it had contracted with. I reject this submission. There is no certainty that enquiries of this kind would necessarily establish the identity of the relevant entities. The evidence suggests that a number of different entities have traded using the PTX Markets’ name in the period since October 2021 and there is no certainty that any individual client or former client of iSAM would have dealt with such entities. Further, it is unlikely that clients or former clients of iSAM would be made aware of the entity or entities from which the unidentified defendants had obtained iSAM’s pricing information.

42. Second, the defendants submitted that Mr Johnson’s evidence that iSAM’s symbol ‘IDX’ is unique should have been verified through retail brokers or other sources. I reject this submission. This is a matter on which Mr Johnson can and has given evidence based on his knowledge and experience in the markets in which iSAM operates, and that evidence did not need to be verified for the purposes of the present application.

Whether the plaintiffs have been unable to sufficiently ascertain the identity of the unidentified defendants?

43. As to the third requirement, it does not appear to be in dispute that the plaintiffs have not been able, despite their enquiries, to identify the unidentified defendants. The plaintiffs did seek this information from Mr Press but he declined to provide it.

Whether the defendants have information that tends to assist in ascertaining the identity of the unidentified defendants?

44. As to the fourth requirement, it is clear from the evidence, and does not appear to be in dispute, that Mr Press has a clear connection with the business name ‘PTX Markets’, because it is owned by a company registered in Vanuatu, Forexco International Ltd of which Mr Press is a director. Accordingly, it is likely he will have information of the kind sought.

Whether the Court, in the exercise of its discretion, should make an order under r 5.2?

45. On the question as to whether the discretion should be exercised in favour of the plaintiffs, the defendants raised two matters: first, that the claim under s 18 of the ACL is speculative and second that the categories of preliminary discovery sought are too broad.

46. In my opinion, on the evidence before the Court, a claim against the unidentified defendants under s 18 of the ACL that their use of iSAM’s Pricing for index swap products in conjunction with the symbol ‘IDX’ in the course of a business of marketing financial products of that nature to retail brokers would not be speculative. The applicable principles for determining whether there is misleading or deceptive conduct under s 18 in the context of the source of goods or services are well established: Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 97 ALJR 388; [2023] HCA 8 at [80]-[83]; see also the summary by Stewart J in Brick Lane Brewing Co Pty Ltd v Torquay Beverage Co Pty Ltd [2023] FCA 66 at [28]-[41].

47. While it is not necessary for the plaintiff to establish a particular reputation in order to prove misleading or deceptive conduct, it is necessary that there is some association in the minds of the relevant sector of the public between the get-up or name used by the plaintiff and its products or services such that it is likely that a consumer will be misled or deceived by the use of the same or a similar get-up or name by a competitor . As was stated in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70, by the Full Court (Black CJ, Emmett and Middleton JJ) at [99]:

Whether or not there is a requirement for some exclusive reputation as an element in the common law tort of passing off, there is no such requirement in relation to Part V of the Trade Practices Act. The question is not whether an applicant has shown a sufficient reputation in a particular get-up or name. The question is whether the use of the particular get-up or name by an alleged wrongdoer in relation to his product is likely to mislead or deceive persons familiar with the claimant’s product to believe that the two products are associated, having regard to the state of the knowledge of consumers in Australia of the claimant’s product.

48. In circumstances where a plaintiff establishes that a name or symbol is distinctive of, or associated in the minds of the relevant target market with, the business of the plaintiff, and that the use of that name or symbol by the defendant is likely to deceive persons into supposing that there is an association between the plaintiff’s business and that of the defendant, it has a prima facie case for relief for breach of s 18. However, it is generally more difficult to establish that the use of a descriptive or generic name as opposed to an invented name has become associated with the plaintiff’s business such that its use by other persons who carry on the same type of business will be misleading or deceptive, and in such a case it may be necessary for the plaintiff to establish that the name has acquired a secondary meaning and become distinctive of the plaintiff’s business: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre (1978) 140 CLR 216 at 229-230; Bohemia Crystal Pty Ltd v Host Corporation Pty Ltd [2018] FCA 235 at [312] per Burley J.

49. It is not, of course, appropriate on a preliminary discovery application to make a considered assessment of the ultimate merits of the prospective claim: The Age at [102]-[104].

50. In my view, based on the evidence before the Court, in particular, the evidence of Mr Johnson that to his knowledge no other LP uses the naming convention indicated by the IDX symbol for index swap products, and the evidence of two market participants (Mr Bent and Mr Sedy) that they recognised that when PTX used the IDX symbol in its pricing, it was adopting iSAM’s naming convention for the relevant index swaps, a claim that use by PTX of the ‘IDX’ symbol in its pricing of index swaps is a breach of s 18 of the ACL is not speculative. However, I am not satisfied that the evidence on this application establishes that the other symbols used by iSAM for its products (such as those for spot foreign exchange or commodity transactions) which appear to be descriptive or generic in nature are sufficiently associated in the minds of persons in the target market with iSAM’s business.

51. As to the breadth of the orders sought, the defendants submitted that the scope of the orders sought went further than reasonably necessary to identify the relevant unidentified defendants and the time allowed (7 days) was too short. This submission was made in conjunction with a contention that the application had a collateral purpose, which was to assist the plaintiffs in proposed court proceedings in England in respect of the alleged breaches of the Consultancy Agreement.

52. In my view, there is some force in the defendants’ submission that prayers 7 and 8 of the amended summons go further than reasonably necessary to identify the relevant unidentified defendants. Without conceding that this so, the plaintiffs provided to the Court after the hearing, as a fallback position, a revised version of prayers 7 and 8 which are as follows:

7. An order pursuant to rule 5.2(2)(a) of the UCPR or the inherent jurisdiction of the Court that the First Defendant attend the Court to be examined before a Registrar of this Court as to the identity of the person, persons, entity or entities:

(a)   offering, supplying or making available liquidity and/or brokerage services, including but not limited to, the provision of pricing information with respect to financial products or financial services, under the business name “PTX Markets” or through the website, URL: ptxmarkets.com

(b)   supplying, receiving or using the plaintiffs’ product pricing information or symbols, including but not limited to price feed information with the prefix “IDX”.

8. An order pursuant to rule 5.2(2)(b) of the UCPR or the inherent jurisdiction of the Court that within 7 days of the date of this order, the Defendants give discovery (verified in accordance with rule 21.4 of the UCPR) to the Plaintiffs, of:

(a)   all documents in the Defendants’ possession created, dated or received during the period [1 June* or 1 August**] 2023 to date, revealing the identity of the person, persons, entity or entities offering, supplying or making available liquidity and/or brokerage services, including but not limited to, the provision of pricing information with respect to financial products or financial services, under the business name “PTX Markets” or through the website, URL: ptxmarkets.com.

(b)   all documents in the Defendants’ possession created, dated or received during the period [1 June* or 1 August**] 2023 to date revealing the identity of the person, persons, entity or entities supplying, receiving or using the plaintiffs’ product pricing information or symbols, including but not limited to price feed information with the prefix “IDX”.

53. In relation to prayer 7 (in both its original and revised form), in my view a more time efficient and cost-effective way for the plaintiffs to obtain the information sought from Mr Press is through an affidavit by him, rather than an examination before the Registrar. Mr Press is likely to have knowledge of all the matters dealt with by prayer 7 and can give an affidavit deposing as to that knowledge. While r 5.2 contemplates an examination before the Registrar, the Court has power in its inherent jurisdiction to order that the information be supplied by an affidavit: see e.g., Pritchard Lees Pty Ltd v Heather [2013] NSWSC 1521 at [17]-[20].

54. In the present case, provision of the information by an affidavit appears to me to be the more appropriate, just and efficient (in terms of time and expense) course. It is also necessary to specify in the order the time period which is to be addressed, which should be 1 June 2023 to the date of the order for the reasons given at [78] in relation to prayer 9 of the amended summons.

55. In relation to prayer 8 in its original form, the specified period (from 1 July 2021 to date) and the nexus imported by the word ‘relating’ have the potential to impose a considerable burden on the defendants. I am conscious that the Court in exercising the discretion under r 5.2 to grant preliminary discovery takes into account the special and intrusive nature of such relief and seeks to limit the form of any order made to what is reasonably necessary to provide the relevant information sought.

56. The revised version of prayer 8 addresses both of these concerns in a manner which I consider to be reasonable. I will adopt the starting date of 1 June 2023 for the reasons given at [78] below. In my opinion it is also necessary to limit the order to the plaintiffs’ pricing information to that which concerns product symbols with the prefix IDX for the reason given above. The revised form, with this change, in my view goes no further than is reasonably necessary to enable the plaintiffs to establish the identity of the person or persons of the entities which engaged in the conduct which they allege to contravene s 18 of the ACL, and those knowingly involved in that conduct. While there is some overlap between prayers 7 and 8, in my view the plaintiffs are entitled to see the documents in the possession of the defendants which identify the persons referred to notwithstanding that this is a matter which will be addressed in the affidavit provided by Mr Press.

57. I reject the defendants’ submission that this proceeding is brought for a collateral purpose (see [51] above). This proceeding is for preliminary discovery in relation to a claim under s 18 of the ACL for conduct by the unidentified defendants who are not parties to the Consultancy Agreement and will raise different issues to a claim against the defendants concerning the alleged breaches of the Consultancy Agreement. The correspondence sent by H&L and Corrs made very clear that claims for breach of the Consultancy Agreement were being treated separately from the claim for breach of s 18 of the ACL. Further, the potential for overlap between the information provided in response to the orders to be made in this proceeding and any claim for breach of the Consultancy Agreement will be reduced by the more limited scope of the orders to be made, and to the extent that there is an overlap, the plaintiffs would need to obtain a release from the Harman undertaking (as was accepted by counsel at the hearing).

Preliminary discovery of documents from defendants

58. By the amended summons, the plaintiffs seek pursuant to r 5.3 of the UCPR or the inherent jurisdiction of the Court, the following order for preliminary discovery:

9. An order pursuant to rule 5.3(1) of the UCPR or the inherent jurisdiction of the Court that within 7 days of the date of this order, the Defendants give discovery to the Plaintiffs, of all documents in the Defendants’ possession created, dated or received during the period 1 July 2021 to date evidencing, recording or relating to the supply, receipt or use of the Plaintiffs’ product pricing information or symbols, including but not limited to price feed information with the prefix “IDX”.

59. Rule 5.3(1) of the UCPR provides relevantly:

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.

60. In O'Connor v O'Connor [2018] NSWCA 214 at [21], Simpson AJA (McColl and Macfarlan JJA agreeing) set out the five matters which the applicant for an order under r 5.3(1) must demonstrate (original emphasis):

(1)    the applicant may be entitled to make a claim for relief from the court against the prospective defendant;

(2)    the applicant has made reasonable enquiries to obtain sufficient information to decide whether or not to commence proceedings;

(3)    having made reasonable enquiries, the applicant is unable to obtain sufficient information to make the decision whether or not to commence proceedings;

(4)    the prospective defendant may have or have had possession of a document or thing that could assist in determining whether the applicant is entitled to make a claim for relief; and

(5)    inspection of such a document would assist the applicant to make the decision whether or not to commence proceedings.

61. In addition, as in the case of r 5.2, the Court retains a discretion whether or not to order the defendant to provide discovery of the documents in question, which is to be exercised judicially and with regard to the case management provisions of the Civil Procedure Act 2005 (NSW) and the UCPR.

62. In Muscat v Qin [2024] NSWSC 113 at [21]-[22], McGrath J summarised the relevant principles to be applied in determining whether to make an order under r 5.3, which I gratefully adopt. I will deal with each of the relevant matters in turn, bearing in mind that the proceedings which the plaintiffs are considering bringing against Mr Press are for his knowing involvement in a breach by the unidentified defendants of s 18 of the ACL by supplying, receiving or using the plaintiffs’ pricing information or symbols.

Whether the plaintiffs may be entitled to make a claim for relief from the Court against the defendants?

63. The word ‘may’ indicates that this requirement has a relatively low threshold and the Court does not have to reach a firm view that there is a right to relief or that there is a prima facie case. However, more than a mere assertion or suspicion is required: Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69 at [47]-[49].

64. In my view, the plaintiffs may be entitled to make a claim against Mr Press for knowing involvement in a breach of s 18 of the ACL by the entities which used iSAM’s product pricing and symbols under the name PTX, at least where the symbol IDX is used because there is evidence that this is distinctive of iSAM’s business. In my view, there is a prima facie case of involvement in such conduct by Mr Press, given the broad definition of ‘involved’ in s 2 of the ACL, which extends to a person who has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention. This requires that the person involved has some knowledge of the essential facts which give rise to the contravention of s 18: Yorke v Lucas (1985) 158 CLR 661 at 670. It is likely that Mr Press will have knowledge of the conduct of the entities which used the PTX business name given his close association with the company which has registered that name, and the fact that there is evidence that PTX ceased to use iSAM’s IDX symbol soon after Mr Press received the H&L letter dated 24 April 2024.

Whether the plaintiffs have made reasonable enquiries to obtain sufficient information to decide whether or not to commence proceedings?

65. For the reasons already given in relation to the order sought under r 5.2, in my view this requirement is met.

Whether, having made reasonable enquiries, the plaintiffs are unable to obtain sufficient information to make the decision whether or not to commence proceedings?

66. This requires an objective assessment of the information already possessed by the plaintiffs to determine whether they are lacking something reasonably necessary to make a decision whether or not to commence proceedings for breach of s 18 of the ACL against the unidentified defendants and Mr Press for knowing involvement in that breach. For example, an applicant may be entitled to preliminary discovery of documents relevant to available defences, or the extent of the apprehended breaches, or the likely quantum of damages as well as of documents which may establish whether there is a cause of action: Morton v Nylex Ltd [2007] NSWSC 562 at [33]. However, preliminary discovery cannot be used to build up a case which the applicant plaintiffs have already decided, or could decide, to bring: Morton at [33].

67. The defendants submitted that it is clear that the plaintiffs have already decided, or could decide, to bring proceedings against Mr Press and consequently do not satisfy this requirement. Reliance is placed on three letters sent by H&L in April and May 2024 to Mr Press, which I have referred to earlier. Having carefully considered that correspondence, I reject this submission.

68. First, the H&L correspondence does not indicate that the plaintiffs have already decided to commence proceedings either in England or in Australia against the defendants. The reference in the first H&L letter to the Practice Direction makes clear that the purpose of that letter is to follow a procedure mandated by the Practice Direction before making a decision to commence proceedings in England. The statement in the second H&L letter that ‘leading counsel had been instructed, with a view to preparation of particulars of claim’ does not indicate that a decision to commence proceedings has been made. Read in context, it is merely a statement that further steps are being taken in preparation for commencement of a proceeding should such a decision be made. While the language in the H&L letters is quite strident in stating the allegation of wrongdoing by the defendants, each of them indicates that the plaintiffs’ ‘investigation’ of the facts is ongoing and the final H&L letter notes that ‘much of the relevant material will be within your possession or control’ which is clearly correct.

69. Second, it is clear from the H&L letters that they concern a claim for breach of the Consultancy Agreement rather than s 18 of the ACL. The potential for a claim under s 18 of the ACL is the subject of the letters from Corrs to the defendants and it is clear from the Corrs letters that no decision has been made by the plaintiffs to commence proceedings under s 18 of the ACL. Indeed, Corrs put the defendants on notice that an application for preliminary discovery would be the next step. As noted earlier, the conduct alleged to be in breach of s 18 of the ACL was undertaken by different defendants and the claim will raise different issues to the claim of breach of the Consultancy Agreement.

70. Third, while White J (as his Honour then was) observed in Morton at [33] that preliminary discovery cannot be used to build a case which the plaintiff on the information it has could bring, the mere fact that a plaintiff has sufficient information to plead a claim does not mean that it has sufficient information to bring proceedings: Racing New South Wales v Racing Victoria (No 2) [2023] NSWSC 576 at [56]. It is clear from Mr Johnson’s evidence that the plaintiffs do not know the extent to which the unidentified defendants have used iSAM’s Pricing in conjunction with its symbols or indeed whether it was using different pricing. These are both material matters for a decision whether or not to commence proceedings against Mr Press for knowing involvement in a breach of s 18 by the unidentified defendants. Further information on these matters will be relevant to the extent of the apprehended breaches and the likely quantum of damages, both of which are important (particularly on the facts presently known to the plaintiffs) to the decision whether to commence proceedings. While the H&L letter of 24 April 2024 alleges that the plaintiffs’ loss from the alleged breaches of the Consultancy Agreement is substantial, and estimated to be $1,083,000, this is clearly stated to be on a provisional and estimated basis.

71. Fourth, the defendants’ contention is that the Consultancy Agreement was terminated by notice given by the defendants on 1 August 2023. On that basis, the restraint period under the Consultancy Agreement terminated on 1 February 2024. Accordingly, the conduct after that time which the plaintiffs allege is in breach of s 18, including in April 2024, would not be part of a claim brought in proceedings in the United Kingdom but rather proceedings brought in Australia for infringements of s 18 of the ACL.

72. For these reasons, I reject the submission that the correspondence by H&L with the defendants indicates that the decision to bring proceedings against the defendants has already been made. Nor in my view can it be said that the application for preliminary discovery is brought to build up a case which the plaintiffs could decide to bring on the basis of the information already held.

Whether the defendants may have or have had possession of documents that could assist in determining whether the plaintiffs are entitled to make a claim for relief?

73. There does not appear to be any dispute that this requirement is satisfied.

Whether inspection of such a document would assist the plaintiffs to make the decision whether or not to commence proceedings?

74. The plaintiffs say that the documents sought by prayer 9 of the amended summons will provide information as to the following matters, each of which is relevant to a decision as to whether to commence proceedings against Mr Press: (a) Mr Press’ role in the misuse of the plaintiffs’ product pricing information and symbols; (b) the nature and extent of Mr Press’ involvement in the PTX business; (c) the duration and extent of the misuse of the plaintiffs’ pricing information and symbols generally; (d) whether the misuse of the plaintiffs’ pricing information and symbols is ongoing; (e) the number of potential retail brokers exposed to the misleading or deceptive conduct; and (f) the extent of damage caused by the misleading or deceptive conduct.

74. The plaintiffs submit that this information is relevant to the plaintiffs’ decision on whether to commence proceedings against the defendants, in particular Mr Press, for being knowingly involved in a breach of s 18 of the ACL by the unidentified defendants. I accept these submissions.

Whether it is appropriate in the exercise of the Court’s discretion to make an order under r 5.3?

76. Finally, it is necessary to consider whether it is appropriate in the exercise of the Court’s discretion to make an order under r 5.3 for discovery of the documents sought under prayer 9. The defendants submit that if (contrary to their primary submission) an order is to be made, the scope of the documents sought is too wide, in particular the period chosen is too long, the use of the expression ‘relating to’ (rather than evidencing or recording) is too vague and the category should be limited to pricing information which utilises the symbol ‘IDX’.

77. Without conceding that the defendants’ submission was correct, the plaintiffs provided to the Court after the hearing a revised version of prayer 9 as a fallback position:

9. An order pursuant to rule 5.3(1) of the UCPR or the inherent jurisdiction of the Court that within 7 days of the date of this order, the Defendants give discovery (verified in accordance with rule 21.4 of the UCPR) to the Plaintiffs, of all documents in the Defendants’ possession created, dated or received during the period [1 June* or 1 August**] 2023 to date evidencing or recording the supply, receipt or use of the plaintiffs’ product pricing information or symbols, including but not limited to price feed information with the prefix “IDX”.

78. I accept the force of each of the points made by the defendants. The revised form of the proposed order provided by the plaintiffs seeks to address the first two points. The relevant period is reduced to a period commencing on either 1 June 2023 (being the month in which the PTX Markets business name was registered, being 19 June 2023) or 1 August 2023 (the date on which the defendants say they gave notice terminating the Consultancy Agreement) and ending on the date on which the order is made by the Court. In my view, the appropriate period for discovery is 1 June 2023 to the date of the order, because this focuses attention on the likely period (on the evidence) in which the business using the name PTX Markets was conducted and avoids imposing an unnecessary burden (in relation to time and costs of compliance) on the defendants.

79. In my view, it is appropriate to replace ‘relating to’ with ‘evidencing or recording’ so that the nature of the documents sought is clear and not ambiguous.

80. Also, for the reasons already given, in my view the scope of the discovery should be limited to pricing information relating to the use of that symbol ‘IDX’.

Costs

81. There is a question as to who should bear the costs of the discovery and of this proceeding. The parties did not address the question of costs at the hearing, no doubt because it would be influenced by the outcome of this proceeding. I will make orders for a timetable allowing the parties to make submissions on costs.

Conclusion

82. For the above reasons the Court will make the following orders:

1. An order that by 16 September 2024 the first defendant should swear or affirm and serve on the plaintiffs an affidavit setting out the full name and address of the person or persons who in the period 1 June 2023 to the date of this order:

1. offered, supplied or made available liquidity and/or brokerage services, including but not limited to, the provision of pricing information with respect to financial products or financial services, under the business name ‘PTX Markets’ or through the website URL: ptxmarkets.com.

2. supplied, received or used the plaintiffs’ product pricing information or symbols with the prefix ‘IDX’.

2. An order pursuant to rule 5.2(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that by 16 September 2024, the defendants give discovery (verified in accordance with rule 21.4 of the UCPR) to the plaintiffs, of:

1. all documents in the defendants’ possession created, dated or received during the period 1 June 2023 to the date of this order, revealing the identity of the person or persons offering, supplying or making available liquidity and/or brokerage services, including but not limited to, the provision of pricing information with respect to financial products or financial services, under the business name ‘PTX Markets’ or through the website URL: ptxmarkets.com.

2. all documents in the defendants’ possession created, dated or received during the period 1 June 2023 to the date of this order revealing the identity of the person or persons supplying, receiving or using the plaintiffs’ product pricing information which utilises a symbol with the prefix ‘IDX’.

3. An order pursuant to rule 5.3(1) of the UCPR that by 16 September 2024, the defendants give discovery (verified in accordance with rule 21.4 of the UCPR) to the plaintiffs, of all documents in the defendants’ possession created, dated or received during the period 1 June 2023 to the date of this order evidencing or recording the supply, receipt or use of the plaintiffs’ product pricing information which utilises a symbol with the prefix ‘IDX’.

4. Direct the parties to bring in short minutes of order for the making of submissions on costs within 7 days.

5. Note that the costs orders will be made, if possible, on the papers but that if any of the parties requires a brief oral hearing this should be identified in the submissions filed pursuant to the short minutes referred to in order 4 (with a short explanation as to why an oral hearing is necessary).

6. Liberty to apply on 2 days’ notice.

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Amendments

22 August 2024 - 22 August 2024 - Party names updated.
22 August 2024 - Typographical error at [69] corrected, "HWL" replaced with "Corrs".

Decision last updated: 22 August 2024