Optiver Australia Pty Ltd v Tibra Trading Pty Ltd

In the case of Optiver Australia Pty Ltd v Tibra Trading Pty Ltd, Optiver sought an order for preliminary discovery against Tibra and several former employees, alleging wrongful disclosure of confidential information and passing it on to Tibra. The dispute was heard in the Federal Court of Australia. The primary legal issue before the court was whether Optiver had established a reasonable cause to believe it may have a right to obtain relief from Tibra, and whether the application met the requirements of Order 15A Rule 6. Additionally, the court had to determine whether the requirements of Order 15A Rule 6(b) were satisfied, which pertains to the necessity of preliminary discovery to enable the applicant to decide whether to commence proceedings.

The court found that Optiver had provided sufficient evidence to establish a reasonable cause to believe that it may have a right to obtain relief. This included the resignation of several key employees and their subsequent involvement in a successful rival business, along with the discovery of concerning emails. The court held that it was not necessary for Optiver to prove every element of the potential causes of action, but rather to demonstrate a reasonable belief in the existence of a right to relief. The court emphasised that the requirement was not to establish a prima facie case but rather a reasonable cause to believe in the existence of a right. The court further found that the evidence provided by Optiver was enough to incline the mind towards the matter of fact in question, despite Tibra’s arguments regarding the shortcomings of the evidence.

However, the court also held that the requirements of Order 15A Rule 6(b) were not satisfied, as Optiver had already obtained enough information to decide whether to commence proceedings. The court stressed that preliminary discovery is not meant to procure documents that will strengthen an applicant’s decision to commence proceedings but rather to furnish it with information reasonably necessary to enable that decision. Once an applicant has obtained sufficient information to plead its case, it is no longer entitled to preliminary discovery. The court concluded that Optiver had crossed the threshold of a bare pleadable case and did not satisfy Order 15A Rule 6(b).

The court allowed the appeal, set aside the order of the primary judge, and remitted the matter back to the primary judge for orders in accordance with the court's reasons. The respondents were ordered to pay the applicant’s costs of the application for leave to appeal and the appeal.