Survival & Industrial Equipment (Newcastle) Pty Ltd (Trading as S.I.E. Liferaft Servicing) v The owners of the vessel Alley Cat

[1992] FCA 319

Re: SURVIVAL AND INDUSTRIAL EQUIPMENT (NEWCASTLE) PTY LTD t/as S.I.E. LIFERAFT
SERVICE
And: THE OWNERS OF THE VESSEL "ALLEY CAT"
No. G110 of 1992
FED No. 319
Admiralty
(1992) 36 FCR 129

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.(1)

CATCHWORDS

Admiralty - application for preliminary discovery - issue of arrest warrant for arrest of ship - whereabouts of ship unknown to plaintiff - application for order that solicitor be orally examined as to the location of the ship - no sufficient evidence that owners of ship indebted to plaintiff - letter from solicitor informing plaintiff's solicitor that he did not know whereabouts of vessel - whether Rules of Federal Court in relation to preliminary discovery applied to circumstances of case - whether plaintiff entitled to rely, in the alternative, on any general law principle - whether case, in any event, an appropriate one for preliminary discovery - consideration of the appropriate order for costs.

Federal Court of Australia Act 1976, s.4.

Federal Court Rules, Order 1, r.8, Order 7, r.9, Order 4, r.17; Order 15A, rr.1, 2 and 3.

Admiralty Act 1988, ss.3, 4 and 17.

Admiralty Rules, rr. 6, 34.

HEARING

SYDNEY

#DATE 28:5:1992

Counsel for the Plaintiff: Mr A.W. Street

Solicitors for the Plaintiff: Thomson Rich O'Connor

Counsel for the Defendant: Mr P.E. King

Solicitors for the Defendant: Ian McGillivray and Associates

ORDER

Date of order: 16 April 1992

THE COURT ORDERS THAT:-

1. The plaintiff's notice of motion dated 13 April 1992 be dismissed.

2. The plaintiff pay to the owners of the vessel, "Alley Cat", their costs of the notice of motion.

DATE OF ORDER: 28 May 1992

THE COURT ORDERS THAT:-

1. The order for costs made in para. 2 of the orders made on 16 April 1992 be rescinded.

2. Paragraph 2 of the Orders made on 16 April 1992 not be entered except with the leave of a Judge of the Court.

3. The parties have liberty, within 14 days of today, to make such submissions in writing on the question of costs as they may be advised.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The argument in relation to the notice of motion filed in this matter was completed on 16 April last. I reached the conclusion that for at least two reasons the notice of motion should be dismissed with costs. But I had not made up my mind in relation to other matters which were argued. These raised questions of some importance and I said that I would give comprehensive reasons at a later stage for the conclusion to which I had come. I did, however, give reasons in relation to the matters upon which I had reached the conclusion that the motion should be dismissed. What follows are my comprehensive reasons for judgment in relation to the notice of motion.

1. At the time that this matter was dealt with on 16 April last, the writ had not been served because the plaintiff's solicitors were unaware of the whereabouts of the "Alley Cat".

2. The owners of the "Alley Cat" have been represented in this Court in other proceedings brought against them by other plaintiffs. They have been represented by a firm of solicitors, Ian McGillivray and Associates, of which Mr McGillivray is the principal. On 13 April the plaintiff's solicitors filed a notice of motion in the proceedings seeking an order that Mr McGillivray be compelled to divulge the whereabouts of the vessel. When the matter was called on, Mr Peter King of counsel announced a conditional appearance for the owners. No point was taken about that course of action at the time but a difficulty about it was disclosed in argument. In due course I will need to refer to that difficulty but it is more convenient to do so after I have dealt with the matters of substance which were argued. It should be mentioned at this point, however, that on 14 May 1992 (after the orders in this matter had been made) an unconditional appearance was filed by Mr McGillivray on behalf of a company, Chase Cars Inc., which was said to be incorporated in the State of New York, United States of America, and to be registered here as a foreign company. Its address was said to be at Baulkham Hills. The appearance said that the company's relationship with the ship "Alley Cat" was that it was the registered owner of the ship.

3. During the hearing, the notice of motion was amended to seek, instead of the order earlier sought, an order that Mr McGillivray be orally examined as to the location of the vessel "Alley Cat".

4. The application was made pursuant to the provisions of Order 4, rule 17 and Order 15A, rule 3, of the Rules of the Court. These are rules of general application to proceedings in the Court and are not restricted to admiralty matters. They apply in the present case because of the provisions of rule 6 of the Admiralty Rules which provides that the Admiralty Rules are not intended to exclude or limit the operation of the rules of a court exercising jurisdiction under the Admiralty Act 1988 to the extent that the rules of the court are not inconsistent with the Admiralty Rules. There is no question of inconsistency here. There is, however, a question of applicability to the particular problem to which this application gives rise.

5. Rule 17 of Order 4, so far as it is relevant, is as follows:-
   

"Preliminary discovery

17.(1) Where, on application by any person, it appears to the Court or a Judge that-

(a) the applicant, having made reasonable inquiries, is unable to ascertain the identity of a person for the purpose of commencing proceedings against that person or is unable to ascertain the description of any person sufficiently for that purpose; and

(b) some person has or may have knowledge of facts, or has or may have in his possession, custody or power any document or thing tending to assist in the ascertainment of the identity or description of the person concerned, the Court or a Judge may order that person-

(c) to attend before the Court or a Judge and be orally examined on any matter relating to the identity or description of the person concerned; and

(d) to produce to the Court or a Judge any document or thing in his possession, custody or power relating to the identity or description of the person concerned.

(2) Where, on the application of any person, the matters mentioned in paragraph (1)(a) appear to the Court or a Judge and it further appears to the Court or a Judge that a corporation has or may have in its possession, custody or power any document or thing tending to assist in the ascertainment of the identity or description of the person concerned, the Court or a Judge may order the corporation or any officer of the corporation to produce any document or thing in the possession, custody or power of the corporation relating to the identity or description of the person concerned.

(3) In this rule-

'description' includes the name, place of residence, place of business, occupation and sex of the person concerned; 'person concerned' means the person referred to in paragraph

(1)(a)."

1. The relevant rules in Order 15A are rules 1, 2 and 3 which are as follows:-
   

"Interpretation

1. In this Order, unless the context or subject-matter otherwise requires-

'applicant' means applicant for an order under this Order; 'description' includes the name, and (as applicable) the place of residence, registered office, place of business, occupation and sex of the person against whom the applicant desires to bring a proceeding, and also whether that person is an individual or a corporation;

'possession' means possession, custody or power. Privilege

2. An order made under this Order shall not operate to require the person against whom the order is made to produce any document which, on the ground of privilege, the person could not be required to produce-

(a) in the case of an order under rule 3 or rule 6, if the applicant had commenced a proceeding against the person;

(b) in the case of an order under rule 5 or rule 7, if the applicant had made the person a party to the proceeding;

(c) in the case of an order made under rule 8, if the person had been served with a subpoena for production of the document at the trial of the proceeding.

Discovery to identify a respondent

3.(1) Where an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person (in this rule called 'the person concerned') and it appears that some person has or is likely to have knowledge of facts, or has or is likely to have or has had or is likely to have had possession of any document or thing, tending to assist in such ascertainment, the Court may make an order under subrule (2).

(2) The Court may order that the person, and in the case of a corporation, the corporation by an appropriate officer, shall-

(a) attend before the Court to be examined in relation to the description of the person concerned;

(b) make discovery to the applicant of all documents which are or have been in the person's or its possession relating to the description of the person concerned.

(3) Where the Court makes an order under paragraph (2)(a), it may-

(a) order that the person or corporation against whom or which the order is made shall produce to the Court on the examination any document or thing in the person's or its possession relating to the description of the person concerned;

(b) direct that the examination be held before a Registrar."

1. There does not appear to be any difference of substance between the two sets of provisions so that it is unnecessary to distinguish between them. I shall proceed, as counsel did, to treat the application as having been made under Order 15A. But it would equally be relevant to refer to rule 17 of Order 4.

2. The evidence in support of the application consisted of a number of affidavits sworn by Mr C.P. O'Connor, who was the plaintiff's solicitor. There is firstly an affidavit sworn by him on 2 April last in support of an application for an arrest warrant. It is unnecessary to refer to the detail of that affidavit. The next affidavit was sworn on 10 April last. It annexed a letter from Mr McGillivray sent by facsimile transmission on 20 March 1992. Mr O'Connor said that it was on the basis of that communication that he believed Mr McGillivray knew the whereabouts of the vessel. The letter from Mr McGillivray was written in relation to another matter in which the owners of the "Alley Cat" were either being sued or were about to be sued by a company, Burgin Pty. Limited. The letter said, amongst other things, that the vessel, i.e. the "Alley Cat", could not depart Australia as scheduled because of an emergency affecting the shipping company whose ship was to carry it as cargo. The vessel was said to be rescheduled to depart as cargo on 24 April last. Mr McGillivray said that it was desired that the vessel depart without impediment and, if Mr O'Connor had instructions concerning a claim, the owners wished to meet it without delay. Mr O'Connor was asked what his intentions were.

3. On 10 April 1992 Mr O'Connor wrote to Mr McGillivray in this matter. He referred to the facsimile of 20 March 1992 sent in the Burgin matter and requested Mr McGillivray to disclose the whereabouts of the vessel before 1.00 p.m. on 10 April 1992, i.e. the day of Mr O'Connor's letter. No such disclosure was made and the motion of 13 April now under consideration was taken out.

4. The next affidavit, which was sworn by Mr O'Connor on 14 April last, deposed to a telephone conversation he had with a Mr McNamara of Liberty Freight Services. He asked Mr McNamara whether he knew where the vessel was. Mr McNamara said that he did not, nor did he know whether it was booked to sail to Florida on 24 April last. Mr McNamara would not tell Mr O'Connor the name of the shipping agent used when the vessel was previously booked to sail in March 1992. Mr O'Connor asked him whether he could find out if the vessel was going on 24 April. Mr McNamara telephoned him again later in the day to say that he had received a facsimile from a Ms Feldman in New York, who was the agent for the owner. She said that she wanted the "Alley Cat" to be shipped on the "Sydney Star" "due out on 24 April 1992". I am not clear whether the reference to the "owner" is a reference to the owner of the "Alley Cat" or the owner of the "Sydney Star". Nothing turns on this.

5. Mr O'Connor asked Mr McNamara whether Ms Feldman had told him where the vessel then was. Mr McNamara said that he did not ask her and she did not tell him. There was some further conversation which it is not material to recount.

6. I next refer to a second affidavit sworn by Mr O'Connor on 14 April. Paragraphs 2 and 3 of that affidavit are as follows:-
   

"2. I am informed by Ingrid Lockwood and verily believe that the plaintiff provided goods being inflatable boat, SOLAS life jackets, inflatable life jackets, waterproof jackets, EPIRB beacons, flares and sea anchor for the vessel 'Alley Cat' in the sum of $11546.40. Annexed hereto and marked with the letter 'A' are copies of the Plaintiff's invoices.

3. I am instructed by the said Ingrid Lockwood and verily believe that the said goods have not been paid for other than one payment of $350.00."

1. The invoices which were referred to in para. 2 of the affidavit bore the name of the plaintiff. Each was addressed to a company or firm, Travel Towers Australia, at Baulkham Hills. The address given was a post office box number so that I am unable to tell whether its address was the same as that of the company named in the appearance. The invoices were dated respectively 3 and 14 October 1991, 8 November 1991 and 19 December 1991. As para. 2 of the affidavit indicated, they were for items of lifesaving equipment. They totalled $11,546.40.

2. In paragraph 5 of the affidavit Mr O'Connor said that on 30 March 1992 he requested Rapid Process Service Pty. Limited to serve the writ on the vessel. Mr O'Connor said that he had been informed by Mr Hill of Rapid Service Pty. Limited that inquiries had been made at numerous locations and of a shipping agent. The whereabouts of the vessel could not be discovered as a result of these inquiries. Annexed to the affidavit was a report from the process server. It is unnecessary to refer to the detail of this.

3. In paragraph 6 of his affidavit Mr O'Connor said that on 2 April 1992 application was made to arrest the vessel and that the Marshal of this Court was asked to locate it, serve thw writ and arrest it. In a facsimile dated 9 April 1992, the Marshal informed Mr O'Connor that she could not discover the whereabouts of the vessel.

4. In paragraphs 8 and 9 of his affidavit Mr O'Connor said that he then informed Ms Lockwood (mentioned in para. 2 of his affidavit) that the plaintiff had no knowledge of the whereabouts of the vessel and that he, Mr O'Connor, was unable to locate it. He said that he believed that Mr McGillivray was likely to have knowledge of facts and circumstances that would assist in locating the vessel.

5. Mr O'Connor gave oral evidence in which he referred to a publication described as the Commercial Daily News for 14 April 1992. It reported that the estimated departure date for the "Sydney Star" was 23 April 1992.

6. One of the submissions made by Mr King at the hearing was that there was not sufficient evidence to indicate that the owners of the vessel were indebted to the plaintiff for the amounts of the invoices. There was no evidence that Travel Towers Australia was the owner of the vessel. The evidence did not identify the owners by name. In his submission this application should fail, if for no other reason than that the Court could not be satisfied that the amount claimed in the writ was, even on a prima facie basis, owing to the plaintiff by the owners of the vessel. That submission was upheld for reasons which I gave orally on 16 April 1992. Having refered to paras. 2 and 3 of Mr O'Connor's second affidavit of 14 April 1992, I then said:-
   

"The affidavit does not indicate who Ingrid Lockwood is, but I would assume that she must be an employee of the plaintiff. Annexed to the affidavit are invoices for the equipment which is referred to in paragraph 2. Each of these invoices is addressed to a company, Travel Towers Australia. When I say a company, I am not sure whether it is a company because it does not have the usual reference to being a limited liability company in the name which is used. An address is given. There is no evidence that Travel Towers is the owner of the vessel. Indeed, I was informed by counsel for the plaintiff that he is unaware of the name of the owner of the vessel. In those circumstances, I do not think that it could be a proper exercise of discretion to make the orders which are here sought. I think one would need as I have said, to be satisfied at least on a prima facie basis that there was an indebtedness from the owners of the vessel. For all I know Travel Towers Australia is the owner, but I have no evidence that it is."

1. Earlier I had said:-
   

"I think it needs to be understood that the jurisdiction which the plaintiff has attempted to invoke is fundamentally, as the history of the rules which are relied upon shows, an equitable jurisdiction. It is not simply a case in which one claims money from a defendant and is able to issue out of a court of ordinary jurisdiction what used to be called at any rate, a specially endorsed writ. This is a case where, for the jurisdiction to be exercised, one needs to have a sufficient certainty that there is a basis for the liability upon which the plaintiff relies. The only evidence about that matter is to be found in Mr O'Connor's affidavit of 14 April, he being the plaintiff's solicitor."

I then referred to paras. 2 and 3 of the afffidavit of 14 April.

1. I do not find it necessary to add to the reasons there given for upholding this submission.

2. Another submission made by Mr King was based upon Mr McGillivray's statement made in a facsimile dated 13 April 1992 which is annexed to Mr O'Connor's affidavit of that date that Mr McGillivray did not know the whereabouts of the vessel. Mr King submitted that that statement indicated that it would be an exercise in futility to make the order which was sought. I also upheld that submission and gave the following oral reasons for doing so.
   

"Now, it is perfectly true that counsel for the plaintiff has put to me that, although that statement should be accepted as being honestly made, it may be that Mr McGillivray has other information which, although it might not tell one where the vessel was, would help in locating it; but there is nothing on the face of the material which I have which would suggest that that is so and it seems to me that the likelihood is that if this order were made and Mr McGillivray were examined, the plaintiff would be absolutely not one step further forward than it is now."

Again I do not find it necessary to add to those reasons.

1. I should mention at this point that there was discussion during the argument about the question whether Mr McGillivray would, if an order were made, be bound to disclose the whereabouts of the vessel. The question was whether he could refuse to disclose its whereabouts on the ground of legal professional privilege. It is to be remembered that privilege is a matter which is referred to in rule 2 of Order 15A which I have earlier quoted. Mr Street, of counsel for the plaintiff, said that this was not a matter to be dealt with at this stage. If the question of privilege were to be raised, it should be raised at the examination which would take place pursuant to the order. I think this submission is correct.

1. It is now possible to come to the more important questions to be dealt with in these resons. There is first the question whether the provisions of Order 15A can have any application to this case at all. Rule 3 of the Order provides that, where an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding and it appears that some person is likely to have knowledge of facts tending to establish any such ascertainment, the Court may make an order for the examination of the person and for discovery to the applicant of relevant documents. The word "description" is defined in rule 1 of the Order to include, not only the name of the person, but also the place of residence, registered office or place of business of the person and also whether the person is an individual or a corporation. In the submission of Mr Street the words of the rule, when read in conjunction with the word "description", are wide enough to embrace a case such as this which, upon the basis upon which it has proceeded, is a case where the plaintiff is able to bring the action but is unable to serve process because the whereabouts of the vessel are not known.

2. It is necessary to put the problem in perspective. If this were a case in which the proceedings had not been commenced but were to be brought in personam and if there were satisfactory evidence that the owners of the vessel were indebted to the plaintiff, it would be an appropriate use of the rule to seek to ascertain their identity for the purposes of commencing an action. The evidence established that the plaintiff did not know the identity of the owners at the time the matter was heard. The appearance to which I have referred came later. But this was a case where the plaintiff wished to have the advantage of a proceeding in rem which would result in the arrest of the vessel and the provision of security for the amount of its claim which that would provide. So the case was one in which the proceeding, notwithstanding the plaintiff's ignorance of the identity of the owners, was able to be commenced because of the fact that in admiralty an action in rem may be commenced against the owners of a vessel without naming them and the vessel arrested. If that occurs, and the owners wish to defend the claim, their only course is to enter an appearance disclosing their name and address for service; see rule 23 and form 9 of the Admiralty Rules. If no appearance is entered, the proceeding will be undefended.

3. The difficulty which there is arises because the rules in question are part of the general rules of the Court and it was not envisaged, when they were formulated, that there would be any question of their applying to an action in rem. Rule 6 of the Admiralty Rules contemplates that the general rules of the Court will apply so as to supplement the Admiralty Rules which were not intended to provide a comprehensive code of procedure for proceedings in admiralty; see report of the Australian Law Reform Commission on Civil Admiralty Jurisdiction (ALRC 33, para 283). There it was said (p 234):-
   

"Hence only where there is a strong case for preserving a distinct admiralty rule, or where considerations of convenience require it, should assimilation not be followed. This principle obviously operates differently with respect to in rem as distinct from in personam actions. In rem actions are the characteristic, and unique, feature of admiralty, and the procedures for commencing such actions and for arresting and releasing ships and other property have to be spelt out in some detail. But even with in rem actions, many matters are also dealt with in general rules, and if there is no reason for a special admiralty rule on the matter none need be proposed. Accordingly, the Rules have been drafted on the basis that the ordinary rules of court will also apply to admiralty matters (unless they are inconsistent with the Act or Rules). Only those features unique to admiralty need be dealt with in the uniform admiralty rules. Provision should be made for any gaps created by the interaction of the admiralty or ordinary rules to be filled by order of the court on application."

1. The fact that the general rules of courts exercising admiralty jurisdiction will apply to admiralty matters will not fill a gap which the rules of court themselves do not fill. Here the case is one in which the identity of the defendant was sufficiently known to enable a proceeding to be commenced. It is true that that is so only because the proceeding may be commenced against the owners of a vessel without identifying them. But the proceeding has been commenced and regularly commenced. In my opinion once that has occurred, the rule ceases to be applicable. The case is not one where the plaintiff "is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person." The proceeding is pending. The plaintiff does not seek information to enable the proceeding to be commenced. It needs information as to the whereabouts of the vessel so that the writ may be served and a warrant of arrest executed. But that is not what the rule provides for. The fact that the word "description" is defined to include in effect the address of the person to be sued does not, in my opinion, assist the plaintiff. I realise that one may need to know the address of the person to be served. Otherwise the institution of the proceeding is futile. But I do not think that that circumstance warrants the conclusion that Order 15A should be given a construction which would enable a plaintiff to use the rule for the purpose of ascertaining the whereabouts of a person who has been sued. That is not its purpose as the words of rule 3 make clear.

2. Section 17 of the Admiralty Act provides for the circumstances in which an action in rem may be commenced in relation to a general maritime claim; see s.4. The claim here is such a claim. The section provides that the action may be commenced where a "relevant person" was, when the cause of action arose, the owner or charterer of, or in possession or control of, the ship and is, when the proceeding is commenced, the owner of the ship or property. A "relevant person" is defined in s.3 to mean, in relation to a maritime claim, a person who would be liable on the claim in a proceeding commenced as an action in personam. Subsection 3(2) of the Act provides that a reference in the Act to the time when a proceeding is commenced is a reference to the time when the initiating process in relation to the proceeding is filed in, or issued by, a court. These provisions support the conclusion that an action is commenced when the writ is filed and is issued by the Court.

3. Another matter to which reference should be made is that the Rules of this Court deal separately with service in Order 7. Rule 9 of that Order makes provision for substituted service where for any reason it is impractical to serve a document in the manner set out in the Rules. Pursuant to this rule the Court may direct that, instead of service, such steps be taken as are specified in its order for the purpose of bringing the document to the notice of the person to be served. There are well known principles which guide courts in the exercise of the discretion which they have under rules of this kind; see eg. Williams, Civil Procedure in Victoria (1987), para (I 6.10). The fact that in the one set of rules there is a provision dealing with service and substituted service and a provision dealing with preliminary discovery reinforces my view that Order 15A was not intended to provide an alternative means of ascertaining the whereabouts of a party for the purpose of serving process.

4. Unfortunately for the plaintiff in the present case, one is not able to obtain an order for substituted service of a writ in rem; see rule 34 of the Admiralty Rules and McGuffie, Fugeman and Gray, Admiralty Practice (1964), British Shipping Laws, Vol. 1, para 479, p 213.

5. Foreseeing these difficulties in his path, Mr Street made three submissions. These were:-
   

(a) The issue of the warrant for the arrest of the vessel was a proceeding separate from the principal proceedings which had been commenced by the issue of the writ. His client was entitled to invoke Order 15A for the purposes of that separate proceeding.

(b) The Court had power, pursuant to Order 1, r.8 of its Rules, to dispense with the provisions of Order 15A and/or rule 17 of Order 4 and should do so.

(c) There was power under the general law to make the order which was sought irrespective of the provisions of the Rules.

1. I deal with these submissions as follows. The basis for the argument that the application for a warrant of arrest should be viewed as a separate proceeding was said to be provided by the definition of "proceeding" in s.4 of the Federal Court of Australia Act 1976 where "proceeding" is defined to include an incidental proceeding in the course of, or in connection with, a proceeding.

2. I think there is a question whether a separate proceeding is constituted by the issue of an arrest warrant. I do not decide that question because the arrest warrant has in fact been issued. If there be a separate proceeding, it has been commenced so that the argument meets all the difficulties to which reference has already been made. If one assumes that there is a separate proceeding, the fact that it has been commenced means that it is too late for the rules relied upon to be invoked.

3. The power to dispense with compliance with the Rules is provided for in Order 1, r.8 of the Rules where it is said that the Court may dispense with compliance with any of the requirements of the Rules either before or after the occasion for compliance arises. I do not regard this rule as providing any answer to the plaintiff's problems One would need in some way to use it for the purpose of amending the rule for the purposes of this particular case so as to confer a power in the Court which it otherwise would not have had. That is not the purpose of a provision such as Order 1, r.8. Its purpose is simply to enable the Court in a proper case to relieve a party of an obligation to comply with particular provisions of the Rules, for instance, as to time or the filing of pleadings and such like.

4. In England there is power to order preliminary discovery under the general law. This was made clear by the decision of the House of Lords in Norwich Pharmacal Co. v. Customs and Excise Commissioners (1974) AC 133. The Norwich case was referred to by Lord Bridge in X Ltd. v. Morgan-Grampian (Publishers) Ltd. (1991) 1 AC 1 (at pp 39-40) where he said:-
   

"In the Norwich case the plaintiffs alleged that the Customs and Excise Commissioners were, in the exercise of their official duties, handling goods which infringed the plaintiffs' patent and which were being illicitly imported into this country. They sought discovery of documents in the possession of the commissioners which would enable them to identify the importers. The commissioners resisted the claim. Although the commissioners had acted entirely innocently, they were required to make disclosure. Just as in the Norwich case the commissioners had innocently come into possession of goods tortiously imported, so here the defendants, whether innocently or not, came into possession of confidential information tortiously obtained and tortiously imparted to them. In the Norwich case the commissioners had already delivered some infringing goods to the importer. The plaintiffs' purpose in seeking discovery was to enable them to identify the importer and bring proceedings against him to restrain further infringing importations. Here the defendants were about to publish the confidential information and would have done so if not restrained by injunction. The plaintiffs here seek the identity of the source to enable them to take the necessary steps to protect themselves from other tortious dissemination of the confidential information which threatens to damage them so severely. It was submitted by Mr Robertson, on behalf of Mr Goodwin, that the jurisdiction to order discovery was not here available because the defendants had been successfully restrained from publishing the confidential information. I do not think this affects the applicability of the principle in any way. Just as the commissioners in the Norwich case were, in Lord Reid's phrase, 'mixed up' in the tortious acts of others from the moment they received the infringing goods tortiously imported so the defendants here were 'mixed up' in the tortious acts of the source from the moment that Mr Goodwin in the course of his employment by the publishers received the confidential information tortiously disclosed. The argument against jurisdiction wholly fails."

1. The Norwich case was referred to by Gummow J. in Corrs Pavey Whiting and Byrne v. Collector of Customs (Vic.) (1987) 14 FCR 434 at pp 445-6. His Honour also referred to the judgments of the courts before which was heard British Steel Corporation v. Granada Television Ltd. (1981) AC 1096, particularly to the judgment of Sir Robert Megarry V-C. The Vice-Chancellor said (pp 1104-5):-
   

"Put shortly, the decision is to the effect that a person who becomes involved in the tortious acts of others, even if innocently, is under a duty to assist a person who is injured by those acts by giving him full information by way of discovery and disclosure of the identity of the tortfeasor. Such an action may be brought even though the plaintiff has no other cause of action, and seeks no other relief, though it cannot be brought against someone who is not involved in the wrongdoing beyond a mere witness or having some relevant document in his possession. The action is a descendant of the old bill of discovery in Chancery. Under the auxiliary jurisdiction, equity used to aid litigants in the courts of law, as well as litigants in equity, by compelling discovery; the courts of law had no means of doing this. But in addition to this process, which has now long been part of the ordinary process of litigation, there was a procedure whereby a would-be plaintiff could bring a bill of discovery in equity in order to find out who was the proper person to bring his actiond against; and it is this process which led to the Norwich Pharmacal case.

In that case, the owners of a patent for a chemical compound found that their patent was being infringed by illicit importations of the compound which had been manufactured abroad. The owners sued the Customs and Excise Commissioners for discovery of the documents which would show who were the importers, and the commissioners not only disputed the plaintiffs' rights to bring such an action, but also contended that public policy precluded the making of the order. The House of Lords rejected these defences, and held that the action should succeed."

1. Assuming that the Court has the jurisdiction under the general law for which counsel for the plaintiff contends, the plaintiff's position would not be taken further. The authorities to which I have referred establish that the jurisdiction extends to assist plaintiffs who are uncertain of the identity of those against whom they have a cause of action to identify the person or persons who should be sued. That is precisely the ambit of the Rules of this Court in question here. There is therefore no warrant for an examination of whether the Court has jurisdiction similar to that exercised by the English courts but, if the question were examined, it would be necessary to take into account the terms of the Rules for the purpose of seeing whether they provide exhaustively for the circumstances under which one may seek an order for preliminary discovery.

2. It follows that I reject each of the submissions relied upon by counsel for the plaintiff. Thus the application which was brought could have been dismissed on the additional ground that the Court did not have jurisdiction to entertain it.

3. That leaves one matter, namely, the question of costs. The order in this matter has not been taken out. At the conclusion of the reasons delivered orally on 16 April last, Mr King sought an order for costs in favour of the defendant. His application was not the subject of detailed consideration. Since reserving my decision, I have developed reservations about having acceded to it. At the time the matter was disposed of, there was in fact no appearance on the file. This was not a matter to which I was alerted. Since the orders were made, as I have earlier mentioned, the owners of the vessel have appeared unconditionally and provided an address in the appearance. If that appearance had been filed when it should have been, my views about costs may have been very different. Indeed the very identification of the owner may have provided the plaintiff with a lead as to the whereabouts of the vessel. I think there is force in what was said by counsel for the plaintiff at one stage of the hearing, namely, that Mr King did not really appear for the owners; he appeared for Mr McGillivray. But at no stage did he say that that was the case. These various matters lead me to think that I should reconsider the order which was made for costs.

4. Accordingly, I propose to rescind the order previously made and to afford counsel an opportunity, if they so wish, of putting in submissions on the order for costs which it is proper to make. Those submissions should be made in writing and delivered to my Associate within 14 days of today. In the meantime there will be a direction placed on the file that the order not be taken out until this matter has been disposed of. If counsel do not wish to make submissions, they should notify my Associate within 14 days. If I consider that I need the assistance of oral argument after considering the written submissions, my Associate will inform counsel and a suitable date will be fixed in Chambers.