Resolute Ltd v Warnes
[2000] WASC 35
•9 FEBRUARY 2000
RESOLUTE LTD & ANOR -v- WARNES [2000] WASC 35
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 35 | |
| Case No: | CIV:1103/2000 | 9 FEBRUARY 2000 | |
| Coram: | TEMPLEMAN J | 9/02/00 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application successful | ||
| PDF Version |
| Parties: | RESOLUTE LTD MICHAEL JOSEPH CARRICK DAVID JAMES WARNES |
Catchwords: | Application for examination under O 26A r 3 Rules of the Supreme Court Whether "reasonable inquiries" were made to discover the indentity of potential parties before application was brought |
Legislation: | Rules of the Supreme Court, O 26A r 3, r 4 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
MICHAEL JOSEPH CARRICK
Second Plaintiff
AND
DAVID JAMES WARNES
Defendant
Catchwords:
Application for examination under O 26A r 3 Rules of the Supreme Court - Whether "reasonable inquiries" were made to discover the indentity of potential parties before application was brought
Legislation:
Rules of the Supreme Court, O 26A r 3, r 4
Result:
Application successful
(Page 2)
Representation:
Counsel:
First Plaintiff : Mr M L Bennett
Second Plaintiff : Mr M L Bennett
Defendant : In person
Solicitors:
First Plaintiff : Bennett & Co
Second Plaintiff : Bennett & Co
Defendant : In person
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 TEMPLEMAN J: I have before me an application pursuant to Order 26A rule 3 which has been brought by Resolute Ltd as first applicant and Michael Joseph Carrick as second applicant against Mr David James Warnes who is a non-party in this matter.
2 The applicant complains about publications on a particular Web site which is identified as Prestonshareholderactiongroup (Resolute) ID number 157338. The publications which have been downloaded from the Web site and are in evidence contain statements about Resolute which are said to be defamatory: and on the face of it they appear to be defamatory.
3 The application is brought against Mr Warnes for an order that he attend personally before this Court for the purpose of being examined in relation to the description and identity of the person or persons publishing material on the Web site which I have identified.
4 It is also sought to have Mr Warnes give discovery of all documents in his possession, custody or control relating to the description and identity of the potential party or parties, namely, the publishers of the material which is complained of.
5 Mr Warnes has appeared before me today in person and has raised a number of matters. He says, first of all, that he is happy to give evidence, although he, as he puts it, wants the court to exercise some control over the proceedings in particular and the use of this practice in general. This is the second occasion on which his cooperation has been sought in this manner.
6 He complains that there have been breaches of the Privacy Act relating, as I understand it, to the disclosure of personal information concerning him to the applicant's solicitors. I said to Mr Warnes that if he wanted to take that as a threshold point in this application, I would be sympathetic to that and would be inclined to grant an adjournment to enable him to get legal advice.
7 Mr Warnes tells me that he wishes to pursue that matter, but separately. It will not therefore stand in the way of his compliance with the orders which are sought. I have explained to Mr Warnes that I am not able to give him any advice about these matters but that he must seek advice for himself.
8 Mr Warnes also tells me that he has instituted some complaint, as I understand it, to the Law Society, in relation to the applicant's solicitors Bennett and Co. That is also a separate matter with which I am not
(Page 4)
- concerned today. I am concerned, however, to ensure that the threshold requirements of O 26A are complied with.
9 It is implicit in O 26A that it is an inconvenience to a non-party to be required to attend before the Court and give evidence and to produce documents. That being so, the order cannot be made unless the applicant after making "reasonable inquiries" has not been able to find out the identity of the person whom he wishes to sue. I have therefore been concerned to see whether in the present case reasonable inquiries have been made.
10 The evidence on that is somewhat sparse. I have an affidavit of Mr Jason Duncan MacLaurin, a solicitor in the employ of Bennett and Co. Mr MacLaurin deposes to the fact that he has asked his firm's information technology officer to make inquiries by way of the Internet and the World Wide Web in order to attempt to identify the party or parties publishing material from the specific source to which I have referred.
11 Mr MacLaurin says he has been informed by the information technology officer, and he verily believes, that he has been unable, despite his best efforts, to identify the publishers of the material.
12 I interpose to say that Mr Warnes says, with some justification, "Well, the applicants appear to have had no difficulty in identifying me. Why therefore can they not identify the publishers of this material?" One answer to that may be that Mr Warnes has identified himself, both in court proceedings and in an article in The West Australian newspaper of 10 November 1999, as a member or representative of the Preston shareholder action group.
13 That being so, it is by no means clear to me that Mr Warnes was identified through the Web site in a way which involved breach of the Privacy Act but, as I have said, that is a separate matter which Mr Warnes proposes to pursue independently.
14 I am told by Mr Bennett from the bar table that in the absence of an Internet service provider in Perth or Western Australia or perhaps even Australia to provide information about people using that Web site it is really impossible to go behind it and find out who are the parties concerned.
15 Although the evidence is somewhat borderline, I am prepared to accept that reasonable inquiries have been made in the circumstances,
(Page 5)
- particularly given that Mr Warnes, despite his concerns, has told me that he will cooperate in this procedure.
16 In those circumstances I am satisfied that the threshold test for O 26A has been satisfied and that there are reasonable grounds for believing that Mr Warnes may have or may be possessed of information of the kind which is sought in the application. That being so, I will make two orders.
17 First I will order that Mr Warnes personally attend for the purpose of being examined in relation to description and identity of a potential party, namely, the identity of the publisher or publishers of material of and concerning the applicant upon the Internet Web sites from the following electronic source and descriptor and that is "Prestonshareholderactiongroup (Resolute) ID # 157338".
18 Secondly, I will order that within seven days Mr Warnes give discovery to the applicants of all documents that are or have been in his possession, custody or control relating to the description and identity of the potential party or parties described in the previous order.
19 Thirdly, I will order that the applicants pay Mr Warnes' reasonable costs and expenses of complying with this order. I will also abridge the time for service of this notice of motion as sought in the application.
0
0
1