In the modern environment of rising cyber security incidents,1 compounded with an increase in the anonymity of individuals behind the cyber veil, the utilisation of the Court's powers to grant Discovery to reveal the identity of a prospective respondent is fast becoming contextually relevant in legal practice.
The Federal Court Rules 2011 (Cth) provide an avenue for a party to apply to the Federal Court for an order requiring a third party to divulge the identity of a 'prospective respondent', or to provide any documents that would assist in identifying the 'prospective respondent'.
To be successful, an applicant must demonstrate that:
a) there may be a right for the prospective applicant to obtain relief against a prospective respondent (First Requirement for Discovery); and
b) the prospective applicant is unable to ascertain the description of the prospective respondent (Second Requirement for Discovery); and
c) another person (the other person):
i. knows or is likely to know the prospective respondent's description; or
ii. has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the prospective respondent's description (Third Requirement for Discovery).2
If the Court is satisfied that the applicant has fulfilled the three requirements for Discovery, the Court may order the other person:
a) attend before the Court to be examined orally only about the prospective respondent's description;
b) produce to the Court at that examination any document or thing in the person's control relating to the prospective respondent's description; and/or
c) to give Discovery to the prospective applicant of all documents that are or have been in the person's control relating to the prospective respondent's description.3
Fulfilling the First Requirement for Discovery
In order to fulfil the First Requirement for Discovery, the applicant must convince the Federal Court that it 'reasonably believes that there may be a right for the person to obtain relief' against the prospective respondent.
The Federal Court has recently considered the principles of Discovery in ascertaining the whereabouts of a group of prospective respondents.4 One of the key factors to come out of Dallas Buyers Club was the requirement for prospective applicants of Discovery to prove that they seek Discovery for a purpose provided by the Federal Court Rules, and that the applicant put on evidence of the nature of the demands or claims they propose to make.
As such, prospective applicants are encouraged to prepare a draft letter of demand (or similar initiating document) in advance of the Discovery hearing that the applicants propose to send to the prospective respondent for approval by the Court. Such a letter must be transparent and explain what exactly is to be claimed.
Fulfilling the Second Requirement for Discovery
Once it is established that an applicant has a defined relief sought for Discovery, it is then necessary to prove that the prospective applicant is unable to ascertain the description of the prospective respondent, thus fulfilling the Second Requirement for Discovery. Objective consideration5 is given by the Court to the “cost, delay and uncertainty” of any alternative kinds of enquiry6 that the applicant has made to locate the person, together with the likelihood that the person that discovery is sought against, actually possesses the information sought.7
Fulfilling the Third Requirement for Discovery
The Third Requirement for Discovery in the Federal Court is much more subjective and requires clear evidence to prove that the person (or persons) that a party is seeking Discovery against knows of, are likely to know of, or possess documents that would help ascertain, the prospective respondent's description.
The terminology of the Federal Court Rules suggests that the applicant does not have to establish in advance that the desired information, document or thing will necessarily reveal the identity or whereabouts of the prospective respondent. As such, Discovery is not restricted to applicants seeking the “last piece of a jigsaw.” This is essentially useful as a party may use the Discovery provisions in circumstances where it does not have sufficient information to decide whether or not to start a proceeding in the Court to obtain relief from the Court.8
Whilst the protections of an individual’s privacy must be respected, the requirement for an applicant to demonstrate to the Court that they have a right to obtain relief from the Court prior to Discovery being granted enables the fair and just process of being able to reveal the identity of a prospective respondent and, of course, encourage the utilisation of alternative dispute resolution in circumstances where ligation may not necessarily provide a suitable solution.