Szymczak v Balijepall

FEDERAL COURT OF AUSTRALIA

Szymczak v Balijepall [2019] FCA 234

File number:

NSD 2355 of 2018

Judge:

LEE J

Date of judgment:

15 February 2019

Catchwords:

DISCOVERY – application for preliminary discovery under FCR 7.23 – seeking disclosure of details relating to the identity of the publisher of allegedly defamatory material

EQUITY – bill of discovery to ascertain the identity of a prospective defendant.   

Legislation:

Federal Court Rules 2011 (Cth) rr 1.32, 7.21, 7.22, 7.33

Cases cited:

Hooper v Kirella Pty Limited [1999] FCA 1584; (1999) 96 FCR 1 at 11 [34]

Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133

Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed, Butterworths, 2014)

Date of hearing:

15 February 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Other Federal Jurisdiction

Category:

Catchwords

Number of paragraphs:

12

Counsel for the Applicant:

Mr J Castalan

Solicitor for the Applicant:

Slocombe Brand Lawyers

Counsel for the Respondent:

No appearance

ORDERS

NSD 2355 of 2018

BETWEEN:

DAVID SZYMCZAK

Applicant

AND:

ANANTH BALIJEPALL

Respondent

JUDGE:	LEE J
DATE OF ORDER:	15 FEBRUARY 2019

THE COURT ORDERS THAT:

1.Ananth Balijepalli attend before the Court at 10.15 am on 18 March 2019 to be examined orally about the description of any person who participated in the publication of an email dated 6 May 2018, that is Schedule A to the statement of claim in this proceeding (the Email), being a Prospective Respondent; and

2.Ananth Balijepalli on or before 18 March 2019 produce to the Court any document or thing in Ananth Balijepalli’s control relating to the Email, the Email Recipients or containing the Prospective Respondent‘s description, including:

(i)the device used to send the Email on 6 May 2018;

(ii)any device used that received or retained the list of the recipients to whom the Email was sent (the Recipients); and

(iii)any communication between Ananth Balijepalli and any person relating to the Email, the list of the Recipients or any other communication intended to be sent to the Recipients.

3.Ananth Balijepalli on or before 18 March 2019 give discovery to the Prospective Applicant of all documents that are or have been in Ananth Balijepalli’s control relating to the Email, the Recipients or containing the Prospective Respondent‘s description, including:

(i)the device used to send the Email on 6 May 2018;

(ii)any device used that received or retained the list of the Recipients; and

(iii)any communication between Ananth Balijepalli and any person relating to the Email, the list of the Recipients or any other communication intended to be sent to the Recipients.

4.Costs reserved.

5.The matter be listed for an interlocutory hearing at 10.15am on 18 March 2019.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from the transcript)

LEE J:

1. The applicant is the chief operating officer of United Petroleum Pty Ltd (United Petroleum) and alleges that in May 2018, the…