Supreme Court New South Wales Medium Neutral Citation: Evertz v Report Card Pty Ltd [2016] NSWSC 1298 Hearing dates: 2 September 2016 Decision date: 02 September 2016 Jurisdiction: Common Law Before: McCallum J Decision: Order for preliminary discovery made as sought in summons; order that discovery be given within fourteen days of today; direct the plaintiff to notify the defendant of these orders by 5pm today; no order as to costs. Catchwords: PRELIMINARY DISCOVERY – defendant operator of website hosting forum for comments about ASX-listed companies – where comments defamatory of plaintiff posted anonymously – plaintiff seeking to ascertain identity of holder of relevant account Legislation Cited: Uniform Civil Procedure Rules 2005 Category: Principal judgment Parties: Richard Evertz (plaintiff) Report Card Pty Ltd (defendant) Representation: Counsel: Ms P Trevitt (plaintiff) Solicitors: Moisson Lawyers (plaintiff) C Galati (defendant) File Number(s): 2016/232572 Judgment – EX TEMPORE 1. HER HONOUR: These are proceedings for preliminary discovery brought by Mr Richard Evertz against Report Card Pty Ltd, the operator of a website at domain www.hotcopper.com.au. That website facilitates a forum allowing users to publish information about ASX-listed companies. The plaintiff at some time in about July of this year became aware of comments about him and the board of an ASX-listed company of which he is the chief executive officer, Big Un Limited. 2. The material in question is annexed to an affidavit relied upon in support of the application. Having considered the content of the material it is clear enough that Mr Evertz may have a cause of action for defamation in respect of it, subject to any defences that may be relied upon by the publisher. 3. Mr Evertz retained solicitors, who wrote to Report Card Pty Ltd. The letter was in the nature of a concerns notice under the Defamation Act 2005 (NSW), but I do not think it was suggested that proceedings would be commenced against Report Card other than for the purpose of having the material taken down. Mr Evertz' real claim is against the author of the comments. 4. Rule 5.2 of the Uniform Civil Procedure Rules 2005 provides that the court may make orders for preliminary discovery if satisfied of two matters. The first is that the applicant, having made reasonable inquiries, is unable sufficiently to ascertain the identity or whereabouts of a person for the purpose of commencing proceedings against the person. The letter written on Mr Evertz' behalf to Report Card sought disclosure of the identity of the person who held the account through which the comments were posted. That inquiry was refused on the basis that the information could not be provided unless Report Card were so ordered by the court. 5. The second requirement to be established under the rule is that some person other than the applicant may have information or possession of a document that tends to assist in ascertaining the identity of the person. It is plain that Report Card holds such information regarding the poster of the blog but, for respectable reasons, is not prepared to provide that information without an order of the court. 6. The position taken by Report Card in respect of the application is that it neither opposes nor consents to the order. However, whereas the summons seeks an order for costs, a letter Report Card sought to have placed before the court sets out authorities relating to the position of a non-party discovery application, which I take to be a reference to an application of a present kind. 7. The letter notes that, in Western Australia, the general rule is that the respondent to an application should be awarded the costs of seeking advice and of complying with the preliminary discovery order. However, it is not made plain on the face of the letter that Report Card is seeking such an order in the present application. The letter concludes: My client does not intend to be represented at any return of the application. That is not meant to be disrespectful to the court but because: (a) aside from the current application my client is a non-party in future contemplated proceedings; (b) my client is not contesting the current application save on the issue of costs; (c) my client's solicitors are not resident in New South Wales. 1. The letter concludes with a request to place that letter before the court. I do not understand the letter to constitute an application for the defendant's costs but rather to set out the reasons why the defendant resists payment of the plaintiff's costs. I am satisfied that the appropriate course is not to order the defendant to pay the plaintiff's costs and otherwise to make no order as to costs. Orders 1. I make order 1 in the summons filed 2 August 2016. 2. In accordance with the request stated in the defendant's letter, I order that discovery be given within fourteen days of today. 3. I direct the plaintiff to notify the defendant of these orders by 5pm today. 4. I make no order as to costs. ***** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 September 2016