Airways Corporation of NZ Ltd & Anor v Pricewaterhouse Coopers Legal & Anor [2002] NSWSC 138

New South Wales Supreme Court

CITATION : Airways Corporation of NZ Ltd & Anor v Pricewaterhouse Coopers Legal & Anor [2002] NSWSC 138 FILE NUMBER(S) : SC 13787/01 HEARING DATE(S) : 04.03.02 JUDGMENT DATE : 8 March 2002

PARTIES : Airways Corporation of New Zealand Limited & Anor Pricewaterhousecoopers Legal & Anor JUDGMENT OF : Simpson J

COUNSEL : R. Glasson (Plaintiffs) W.H. Nicholas QC with M. Thorley (Defendants) SOLICITORS : Neil Scott (Plaintiffs) Mallesons Stephen Jaques (Defendants) CATCHWORDS : preliminary discovery - internet publication - where publication takes place LEGISLATION CITED : Supreme Court Rules 1970 John Fairfax and Sons Ltd v Cojuangco (1988) 165 CLR 346 CASES CITED : Gutnick v Dow Jones & Co Inc [2001] VSC 305 (unreported 28 August 2001) Dow Jones & Co v Joseph Gutnick (unreported 21 September 2001) DECISION : Order for preliminary discovery. (See para. 15.)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUTY JUDGE list

SIMPSON J

8 March 2002

13787/01 Airways Corporation of New Zealand Limited & Anor v PricewaterhousCoopers Legal & Anor

JUDGMENT 1 Her Honour: In these proceedings the plaintiffs, Airways Corporation of New Zealand and Craig John Sinclair, seek an order for preliminary discovery pursuant to SCR Part 3 Rule 1(1). That rule is in the following terms: "3.1. (1) Where, on application by any person, it appears to the Court 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 may order that person: (c) to attend before the Court or an officer of the Court and be orally examined on any matter relating to the identity or description of the person concerned; and (d) to produce any document or thing in his possession, custody or power relating to the identity or description of the person concerned." 2 The proceedings arise out of the publication, by email, of certain material capable of defaming each of the plaintiffs. The only evidence as to receipt of the material is from two witnesses, each of whom received it in New Zealand. There is, however, evidence that other individuals had received different emails concerning both plaintiffs. This evidence does not significantly advance the plaintiffs' case on the present application, although it may potentially have some relevance to discretionary considerations. 3 The identity of neither the author(s) nor the transmitter(s) is apparent. The second plaintiff has deposed that both plaintiffs wish to commence proceedings in defamation and injurious falsehood against those responsible for transmitting the material. The plaintiffs have therefore made such inquiries as are available to them in order to ascertain the identity of the transmitter(s), without success. It appears that some one or more of the partners of the first defendant and/or the second defendant may have knowledge of facts, or have within their possession, custody or power, documents or other items that would tend to assist in ascertaining the identity of the person(s) concerned. 4 No issue was raised concerning any of the above. The defendants resist the orders sought on two bases. The first was identified as a jurisdictional issue. Senior Counsel for the defendants argued that the evidence is insufficient to establish that either plaintiff intends to commence proceedings in this Court against any person responsible for the publication. He argued that Part 3 Rule 1(1)(a) should be construed as if it read: "… for the purpose of commencing proceedings in this Court …" 5 Senior counsel for the defendants argued that the Supreme Court rules are, axiomatically, confined to proceedings taken in this court. Up to a point, that is plainly correct. However, I am satisfied that Part 3 Rule 1(1)(a) should not be so confined. 6 If the rule was construed as suggested by the defendants, then the evidence would fall short of establishing the relevant intent, which, it was argued, is a prerequisite to the making of an order under the rules. 7 In support of this proposition, senior counsel relied on a passage drawn from John Fairfax and Sons Ltd v Cojuangco (1988) 165 CLR 346 at 350. There the High Court was considering matters relevant to the exercise of discretion under Part 3 Rule 1(1). By way of introduction and outline of the facts, the Court said: "he [meaning the plaintiff] seeks to identify the second appellant's sources of information so that he may bring proceedings in New South Wales for defamation against the persons who have provided information to the second appellant for the parts of the article of which he complains."