FEDERAL COURT OF AUSTRALIA

John Bridgeman Limited v Dreamscape Networks FZ-LLC [2018] FCA 1279

ORDERS

THE COURT ORDERS THAT:

1.    The first prospective respondent give discovery to the prospective applicants of all documents in its control that are directly relevant to identification of the name and/or address of the person or persons responsible for:

(a)    maintaining the website www.10footinvestor.com; and

(b)    placing entries (otherwise called “posts”) under the username “10footinvestor” into or on an internet blog maintained at the website www.10footinvestor.com;

within 21 days of service of these Orders.

2.    The first prospective respondent comply with Order 1 by either providing a copy of each document to the prospective applicants or by complying with r 7.25 of the Federal Court Rules 2011(Cth).

3.    The prospective applicants draw to the attention of the first prospective respondent the content of r 7.29 of the Federal Court Rules 2011 (Cth) when serving this Order.

4.    There will be no order for the costs of the application for preliminary discovery as between the prospective applicants and the first prospective respondent.

5.    The application for preliminary discovery against the second prospective respondent is dismissed.

6.    The prospective applicants pay the second prospective respondent’s costs of the application for preliminary discovery.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an application under r 7.22 of the Federal Court Rules 2011 (Cth) (the Rules) for orders for preliminary discovery to ascertain the description of a prospective respondent.

2    The first three prospective applicants are public companies listed on the Australian Stock Exchange. The fourth prospective applicant is the managing director of the first two prospective applicants and a director and the executive chairman of the third.

3    The first prospective respondent, Dreamscape Networks FZ-LLC owns the domain name registrar of a website, www.10footinvestor.com (website). The second prospective respondent, BT Lawyers Pty Ltd (solicitors), is a firm of solicitors acting for the publisher (publisher) of the website.

4    Between May and July 2017, a series of articles was published on the website concerning the prospective applicants. The articles were generally critical of the prospective applicants and included the following statements:

Something I can’t put my finger on has rubbed me the wrong way about the funds since their debut. The Fuckery-O-MeterTM has been steadily creeping up in the background…

Something doesn’t add up and I remain gravely concerned about the way that Henry Morgan and co are creating value for their shareholders…

Even among other listed companies there are plenty of deceptive ‘follow the pea’ shenanigans … that can be used to mask certain issues without being illegal…

I don’t know if I’m right, there is a lot of assumptions [sic] in there. However, I am convinced that something here is fucking rotten. Buyer beware…

It is the degree to which it is all occurring, plus the tangled-ness, lack of disclosure, and the general feeling of a ‘scheme’ that has attracted my scepticism…

(Footnotes omitted.)

5    The prospective applicants submit that these statements represented that:

(a)    the prospective applicants have not complied with their legal obligations to disclose certain matters to the market;

(b)    the prospective applicants have engaged in behaviour which is deceptive, unethical or unjustifiably risky (or that there is a reasonable basis to form that view); and

(c)    the prospective applicants are involved in a “scheme” to dishonestly or unethically obtain funds from investors (or that there is a reasonable basis to form that view).

6    The prospective applicants allege that the representations are untrue. They wish to bring a proceeding against the publisher of the blog, but do not know the identity of the publisher. They seek orders for discovery of documents from the first and second prospective respondents relating to the prospective respondent’s description under r 7.22 of the Rules, which provides:

7.22    Order for discovery to ascertain description of respondent

(1)    A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant satisfies the Court that:

(a)    there may be a right for the prospective applicant to obtain relief against a prospective respondent; and

(b)    the prospective applicant is unable to ascertain the description of the prospective respondent; 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.

(2)    If the Court is satisfied of the matters mentioned in subrule (1), the Court may order the other person:

(a)    to attend before the Court to be examined orally only about the prospective respondent’s description; and

(b)    to produce to the Court at that examination any document or thing in the person’s control relating to the prospective respondent’s description; and

(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.

…

7    The expression “description” is defined in Sch 1 of the Rules to mean, for an individual, “the person’s name, residential or business address and occupation”. The prospective applicants only seek to ascertain the publisher’s name and address. As the prospective applicants’ submissions focus upon the publisher’s name, I will adopt the same approach. The parties have not submitted that a different outcome is available as between the name and address in the circumstances of the case.

8    In Hooper v Kirella Pty Ltd (1999) 96 FCR 1, the Full Court considered O 15 r 3 of the Federal Court Rules 1979 (Cth) (repealed):

31    An applicant for relief under O 15A, r 3 must show that, after having made reasonable inquiries, he or she is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding against that person. Order 15A, r 3 plainly contemplates that the applicant needs to ascertain the identity of the relevant person in order to institute a proceeding in the Court against him or her.

32    Secondly, the applicant must show that “some person” has or is likely to have knowledge of facts, or the possession of documents, tending to assist in identifying the prospective respondent. The rule is therefore available even if relief is sought against a person who is in no way implicated in the wrongful conduct of which the applicant complains. In other words, relief is available against a “mere witness” or bystander... To this extent, the rule differs from the equitable bill of discovery.

33    Thirdly, the applicant is not required to demonstrate the existence of a prima facie case against the prospective respondent. Nonetheless, the power conferred by O 15A, r 3 is not to be used in favour of a person who intends to commence “merely speculative proceedings”. A material factor in the exercise of the Court’s discretion is the prospect of the applicant succeeding in proceedings against the person he or she wishes to sue.

34    Fourthly, the High Court has emphasised that an applicant under a rule in the form of O 15A, r 3 must show that the order sought is necessary in the interests of justice. That is, the applicant must show that: ‘‘the making of the order is necessary to provide him with an effective remedy in respect of the actionable wrong of which he complains.” These observations emphasise the link between identity discovery and the applicant’s complaint that he or she has suffered from an actionable wrong.

(Citations omitted)

9    Unlike O 15 r 3, r 7.22 does not contain any express requirement that a prospective applicant have made reasonable enquiries. That may be because it is inherently unlikely that a prospective applicant would apply under r 7.22 without first having tried cheaper and more convenient ways of obtaining the prospective respondent’s description. In any event, the question of whether reasonable enquiries were made may fall to be considered in the exercise of the Court’s discretion to make an order. Leaving aside that issue, it has been accepted that the principles discussed in Hooper v Kirella Pty Ltd are applicable to r 7.22 of the Rules: see Sites N Stores Pty Ltd v Whirlpool.Net.Au Pty Ltd [2015] FCA 1474 at [19]–[20] (Moshinsky J); Dallas Buyers Club LLC v iiNET Ltd (2015) 245 FCR 129 at [67]–[70] (Perram J).

10    The first prospective respondent has filed a submitting notice and, accordingly, has not taken any active part in the application.

11    The publisher’s solicitors oppose any order requiring them to provide discovery of documents relating to the publisher’s identity. They do so on the basis, firstly, that the prospective applicant has not demonstrated that it has any viable claim falling within the jurisdiction of the Court and, secondly, that any such documents are subject to legal professional privilege.

12    As to the first of these issues, r 7.22(1)(a) of the Federal Court Rules requires that the Court be satisfied that there may be a right for the prospective applicant to obtain relief against a prospective respondent. The prospective applicants claim that they have, or may have, a right to relief against the publisher for:

(a)    defamation under the Defamation Act 2005 (Qld);

(b)    injurious falsehood;

(c)    breach of s 18 of the Australian Consumer Law (misleading or deceptive conduct in trade or commerce); and

(d)    breach of s 1041H of the Corporations Act 2001 (Cth) (misleading or deceptive conduct in relation to a financial product or financial service).

13    The publisher’s solicitors submit that the prospective applicants cannot demonstrate any arguable case of breach of s 18 of the Australian Consumer Law because the material published on the website was not published in trade or commerce. The prospective applicants concede this point. The solicitors submit that if the prospective applicants sued for defamation or injurious falsehood alone, this Court would have no jurisdiction in respect of the proceeding. The prospective applicants also concede this point. That leaves the question of whether the prospective applicants may have a right to obtain relief for breach of s 1041H of the Corporations Act.

14    Section 1041H of the Corporations Act provides that, “A person must not, in this jurisdiction, engage in conduct, in relation to a financial product or a financial service, that is misleading or deceptive or is likely to mislead or deceive.” Under s 764A, a “financial product” includes a “security”, and “security” is defined in s 761A to include “a share in a body”.

15    The prospective applicants submit that making misleading or deceptive comments about investing in the shares of public companies falls within the scope of s 1041H of the Corporations Act. The publisher’s solicitors submit that the provision applies only where the target of the representations is a consumer and the representations are made by someone with responsibility for the financial product or financial service. They argue that the scope of the provision does not extend to the present situation where the publisher is engaged in journalistic discussion of companies operating in the market and the prospective applicants are operators of those companies.

16    The articles in question provided commentary and advice to its readers about investing in shares of the first three prospective applicants. There is at least an arguable case that the articles contain the representations alleged by the prospective applicants, that they are misleading or deceptive and that they are in relation to a financial product. Section 1041H of the Corporations Act is cast in broad terms and, on the face of the provision, the representations are capable of falling within its scope. In Australian Securities and Investments Commission v Narain (2008) 169 FCR 211, the Full Court rejected a submission that the phrase “in relation to” in s 1041H should be given a confined meaning, lending support to the prospective applicants’ submission that no narrow view should be taken of the provision. In addition, the provision is drafted in similar terms to s 18 of the Australian Consumer Law and there is ample authority for the proposition that the predecessor of that section has considerable reach and is not confined to proceedings brought by or on behalf of consumers: see French R, “A Lawyer’s Guide to Misleading or Deceptive Conduct” (1989) 63 ALJ 250. It is not necessary to determine whether the proposed proceeding comes within the scope of s 1041H, but only whether it may do so. I am satisfied that the prospective applicants have demonstrated at least an arguable case that it does.

17    The second issue is whether the publisher’s communication of his name to his solicitors attracts legal professional privilege. At this point, it is necessary to describe the evidence concerning the publisher’s communications with the solicitors.

18    The lawyers acting for the prospective applicants wrote on 30 November 2017 to an email address obtained from the website, demanding, inter alia, that the person responsible for the blogs reveal his or her identity, delete the relevant posts and respond by 8 December 2017. The publisher responded on 30 November 2017 and then on 6 December 2017 declining to reveal his or her identity, but indicating, inter alia, that the relevant posts had been deleted. In an email dated 8 December 2017, the prospective applicants’ lawyers continued to demand that the publisher reveal his or her identity and threatened to make a preliminary discovery application and bring other proceedings unless their demands were complied with in full.

19    A solicitor employed by the second prospective respondent, Clint Kanther, has deposed that on 8 December 2017, he was contacted by an acquaintance who said he was making enquiries on behalf of another person but did not reveal that person’s identity. Mr Kanther agreed to his email address and mobile telephone number being provided to the person.

20    Mr Kanther then deposes as follows:

4.    On or about the morning of 11 December 2017, I was contacted on my mobile telephone:

(a)    The caller advised me that they had been given my contact details and needed legal advice about a defamation matter;

(b)    The caller stated that they ran an anonymous blog and lawyers were now demand[ing] that they reveal their identity;

(c)    The caller stated they were not sure who they could talk to;

(d)    I advised the caller that I would need to review the documents they had received before I could provide any advice of substance and that I would need to arrange a client agreement - but to do that I would obviously need their personal details;

(e)    the caller advised that they had already missed a deadline that the lawyers had given them (which was the Friday 8 December 2017) and needed to get a lawyer as soon as possible;

(f)    the caller, hereafter referred to as “my client” agreed to communicate their identity and address details to me to enable to me to prepare a client agreement and to enable me to properly advise them on the basis that such information was confidential;

(g)    my client agreed to send me their details along with the correspondence they had received.

5.    On 11 December 2017, I was instructed by my client, that they wanted to resolve the matter promptly, but the disclosure of their identity would only be on the basis that their identity remain confidential.

6.    I was specifically instructed that all communication with the Prospective Applicants was to keep my client’s identity confidential.

21    The affidavit is sparse in detail and incomplete as to the events that occurred. However, I am able to infer from the affidavit and the correspondence between the respective lawyers that: the publisher must have sent his name and address to the solicitors; the solicitors must have sent a client agreement to the publisher; the publisher must have signed and returned the client agreement; and the solicitors thereafter provided legal advice.

22    The publisher’s solicitors wrote to the prospective applicants’ solicitors and attempted to negotiate a resolution of the matter. In the course of the correspondence, the solicitors revealed, on instructions, that their client was a male in his mid-twenties, had limited means and maintained the blog as a hobby. The prospective applicants’ lawyers continued to demand disclosure of the publisher’s identity, but his solicitors declined to do so.

23    The prospective applicants seek documents in the control of the publisher’s solicitors that would disclose his identity. Such documents would include the client agreement between the publisher and his solicitors.

24    The prospective applicants submit that the evidence demonstrates that the purpose of the publisher providing his name to the solicitors was to allow a client agreement to be entered, not to obtain legal advice. They submit that the general rule is that a communication by a client of his or her identity to a lawyer is not privileged and that no exception is applicable. They submit that the United States and Canadian cases relied upon by the solicitors do not form part of the law of Australia. Further, they submit that the publisher’s only purpose in withholding his name is to avoid being sued, but that the privilege does not subsist in order to frustrate the processes of the law in such a way.

25    The publisher’s solicitors submit that the client’s communication of his identity to his lawyers attracts legal professional privilege. They rely upon Z v New South Wales Crime Commission (2007) 231 CLR 75 for the proposition that there are exceptional circumstances where there is such a connection between a confidential communication and a retainer that disclosure by a lawyer of the identity of the client will disclose the confidential communication. They also rely heavily upon SRJ v Person(s) Unknown [2014] EWHC 2293 (QB), a case also involving an application for disclosure of the identity of an anonymous blogger, as well as various United States and Canadian authorities. They submit that the evidence demonstrates that the publisher disclosed his identity in confidence and for the dominant purpose of obtaining legal advice.

26    Legal professional privilege attaches to confidential communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in existing or anticipated litigation: see Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 at [35]; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [132].

27    A client’s communication of his or her name to a lawyer is not usually privileged. In Commissioner of Taxation v Coombes (1999) 92 FCR 240, the Full Court said at [31]:

The following propositions, amongst others, can be distilled from the cases we have examined:

•    Privilege attaches to communications, and not to facts which a lawyer observes while acting in the course of a retainer.

•    Privilege does not attach to everything a client says to the lawyer, but only to communications made by the client for the purpose of obtaining the lawyer’s professional assistance. It will not attach to “mere collateral facts”. The address and identity of a client will usually be “collateral facts”.

•    Privilege attaches to communications only if they are confidential. In almost all cases the client’s name and address will not have been communicated confidentially.

•    Instructions to a lawyer to do a particular thing, for example to prepare a legal document such as a will, are generally not privileged, because instructions to do something do not necessarily amount to a request for advice.

•    As a general rule, the identity of a client will not be privileged, as the privilege belongs to the client, and the retainer between the lawyer and the client must be demonstrated in order to establish the privilege. This requires disclosure of the client’s identity.

•    Disclosure of the client’s identity is necessary before the privilege can arise even if the client’s name was given in confidence, and it was a condition of the lawyer’s retainer that the client’s identity be kept confidential. The client cannot by contract extend the area of privilege.

•    Some of the cases support an exception to this general rule when so much of the actual communication has already been disclosed that identification of the client amounts to disclosure of a confidential communication. This will be the case when the client’s identity is so intertwined with the confidential communication that to disclose the identity would be to disclose the communication.

(Underlining added.)

28    In Z v New South Wales Crime Commission, the High Court considered whether a lawyer could be required to disclose the identity of his client under a particular statutory provision, but also considered the position under the general law. Each member of the Court confirmed that as a general rule, a client’s communication of his or her identity to their lawyer is not privileged. Justices Hayne and Crennan explained:

[36]    ...[I]n considering why the client’s name and address are ordinarily not privileged...it is consideration of the purpose of the communication of this information that is important. In most cases the communication of those details is not for the purpose of seeking or giving legal advice. As Lord Esher MR said in Bursill v Tanner, “The client does not consult the solicitor with a view to obtaining his professional advice as to whether he shall be his solicitor or not”.

(Footnote omitted.)

...

[40]    ...It is the particular communication that is privileged and the privilege attaches only if the dominant purpose of the communication was giving or receiving legal advice. That is why a client’s communication of name and address, even if made in a meeting the evident purpose of which is the seeking and obtaining of legal advice, is ordinarily not privileged. That communication does not have the requisite purpose.

29    In that case, a client had retained lawyers and instructed them to pass on certain information about suspected criminal conduct to the police, but on the basis that they were not to disclose the client’s identity. The NSW Crime Commission sought to compel the lawyers to disclose their client’s identity. The lawyers’ argument was, in part, that legal professional privilege attached to the client’s communication of his name and address because the very subject of the legal advice that was sought and given concerned the preservation of his anonymity.

30    Justices Hayne and Crennan at [37]–[38] did not accept that the evidence demonstrated that the communication of the client’s name and address should be characterised in this way, nor that the communication of that information was for the dominant purpose of seeking legal advice. Their Honours noted that the appellant relied upon decisions made by United States’ courts said to demonstrate that there are circumstances where disclosure of the identity of a client is privileged because disclosure would either reveal a confidential communication or the client’s motive for seeking legal advice. Their Honours said it was not necessary to consider whether the principle that the appellant contended these cases stood for should be adopted as part of the common law of Australia.

31    Justices Kirby and Callinan at [12] were “inclined to accept”, in light of the peculiar circumstances of the retainer and its dominant purposes, that the communication of the client’s name and address was privileged. Chief Justice Gleeson stated at [4] that, “As a general rule, a requirement that a lawyer disclose the identity of a client will not necessitate disclosure of a confidential communication”, but that there are “exceptional circumstances in which there is such a connection between a confidential communication and a retainer that disclosure by a lawyer of the identity of a client will disclose that confidential communication”.

32    In Z v New South Wales Crime Commission, only Gleeson CJ expressed a concluded view about the circumstances in which the general rule would not apply to disclosure of the client’s identity. However, no member of the High Court dissented from the view expressed in Coombes at [31] that a confidential communication may be privileged when the client’s identity is so intertwined with the communication that to disclose the identity would be to disclose the communication. In fact, the opinions expressed tentatively by Kirby and Callinan JJ, and firmly by Gleeson CJ, are consistent with Coombes.

33    The publisher’s solicitors rely upon the judgment in SRJ v Person(s) Unknown. The circumstances of that case are not dissimilar to those of the present case. An anonymous blogger had published the claimant’s confidential information. The claimant sought disclosure of the blogger’s identity from his former solicitor. The solicitor deposed that the client had communicated his identity confidentially for the purpose of being advised upon a possible settlement of the case and had given express instructions that his identity should be kept confidential. Sir David Eady concluded that the communication of the author’s identity was protected by legal professional privilege and that, in any event, there were powerful discretionary reasons not to override the duty of confidence. The precise reasoning and the principle upon which the Court acted to determine that legal professional privilege applied are not apparent. The Court appears to have reasoned by analogy with cases concerning disclosure of a client’s address and contact details. However, as the cases relevant to the fifth and sixth dot points at [31] of Coombes demonstrate, different considerations may sometimes apply to the disclosure of a client’s name compared to the disclosure of their address. I have found SRJ v Person(s) Unknown to be of limited usefulness in determining the issue in this case.

34    The publisher’s communication of his name to his solicitors cannot attract legal professional privilege unless that communication was for the dominant purpose of seeking legal advice. That issue must be considered by reference to the evidence.

35    The correspondence demonstrates that the prospective applicants’ solicitors threatened to sue the publisher for defamation and demanded that he reveal his identity. The publisher resisted revealing his identity, apparently because he was “afraid of retaliation”. Presumably, the retaliation he feared included being sued.

36    Mr Kanther deposes that in their telephone discussion on 11 December 2017, the publisher said that he “needed legal advice about a defamation matter” and that “lawyers were now demand[ing] that [he] reveal [his] identity”. The publisher also said had missed a deadline that the lawyers had given him. Mr Kanther understood that to have been a reference to the Friday 8 December 2017 deadline. That was the date by which the lawyers had demanded that the publisher, inter alia, reveal his identity. Mr Kanther told the publisher that he would need his name and address for a client agreement. That information was supplied and advice was subsequently given. Mr Kanther, on instructions, continued to maintain the confidentiality of his client’s identity in the ensuing correspondence.

37    I infer, from these matters, that the publisher was seeking advice from the solicitors, not only about the general matter of the defamation proceedings threatened against him, but also as to the preservation of his anonymity. That is consistent with the publisher’s earlier refusal to disclose his name to the prospective applicants and his later insistence that the solicitors not disclose his name.

38    The publisher’s solicitors have not submitted that the publisher communicated his name for any purpose of engaging them to represent him in anticipated proceedings. Such a submission might have raised different or additional issues. The sole basis upon which the solicitors submit that privilege arises is that the publisher’s communication of his name to them was a confidential communication for the dominant purpose of obtaining legal advice.

39    I find that the publisher communicated his name to the solicitors for two purposes: first, to allow a costs agreement to be drawn up and entered; and, second, to obtain legal advice, including advice about the preservation of his anonymity. The solicitors required the publisher to disclose his name to them before they would provide advice to him. The first purpose involved a step that was necessary in order to allow the second to be achieved. The first would have been unnecessary but for the second. The second was the dominant purpose.

40    By disclosing his name, “X”, to the solicitors, the publisher communicated that “X” was the publisher of the blog. Where a person seeks legal advice about a particular state of facts that he or she communicates to a lawyer, unless there has been a waiver of privilege, the lawyer cannot be required to disclose that state of facts, any more than the lawyer can be required to disclose the content of the advice provided: see, for example, DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151 at [38], [51]–[52] (Allsop J); Kenquist Nominees Pty Limited v Campbell (No 5) [2018] FCA 853 at [15]–[16] (Thawley J); Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at [87]–[90]; Balabel v Air India [1988] Ch 317 at 330. It is part of the confidential communications that pass between the client and the lawyer.

41    In this case, one aspect of the state of facts that the publisher communicated to the solicitors was that he, “X”, was the publisher of the articles. The very purpose for which the publisher communicated his name was to obtain legal advice about avoiding disclosure of his name as the publisher. The communication of his name was inextricably intertwined with the advice he was seeking.

42    The case falls within the exception identified in Coombes where the client’s identity is so intertwined with the confidential communication that to disclose the identity would be to disclose the communication. For the solicitors to disclose the publisher’s name would be to disclose the substance of a confidential communication, namely his identity as the publisher of the blog. For these reasons, legal professional privilege attaches to the publisher’s communication of his name to the solicitors.

43    This conclusion is consistent with the purpose of legal professional privilege, which “exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers”: Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia at 35. In Baker v Campbell (1983) 153 CLR 52, Gibbs CJ said at 66 that privilege exists to “ensure that the client can consult his lawyer with freedom and candour, it being thought that if the privilege did not exist “a man would not venture to consult any skilful person, or would only dare to tell … half his case””: see also Deane J at 114; Dawson J at 130. It would be contrary to this aspect of the public interest if those wishing to take legal advice about protection of their anonymity were required to take the risk that their lawyers may be compelled to disclose that which they seek to protect.

44    The prospective applicants submit that legal professional privilege will not subsist in order to frustrate the processes of the law. They submit that the publisher’s purpose in withholding his name is to avoid being sued, and that purpose precludes the use of privilege as a shield.

45    In Carter v The Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121 it was held at 160:

The privilege is not available, however, in respect of communications that are made to facilitate the commission of a crime or fraud or the abuse of an exercise of public power or the frustration of the order of a court.

(Citations omitted.)

46    In Hamdan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1267; (2004) 211 ALR 642, an order was sought to require a solicitor to disclose the mobile phone number of a client that had been confidentially communicated to her. The client had failed to appear at a hearing, contrary to an order of the Court. The Minister argued that legal professional privilege could not be claimed on the basis, inter alia, that the communication of the client’s number to the solicitor was made to thwart the order of the Court. Justice Finn found that the purpose of the communication was to obtain legal advice, and that there was nothing to suggest that it was informed by the purpose of evading the order — rather the client was seeking to evade the operation of s 189 of the Migration Act 1958 (Cth) which required that he be detained. His Honour distinguished the case from R v Bell; Ex parte Lees (1980) 146 CLR 141 where it was held that privilege did not attach to a client’s contact details where the client had been deliberately flouting a court order and confidentiality had been sought in order to further the wrongdoing.

47    In this case, there is no process of the Court that is capable of being frustrated. No proceeding has been filed — there is merely the possibility that a proceeding may be filed. The communication of the publisher’s identity to the solicitors was not for the purpose of frustrating any order made by a court. Further, I cannot see that it is improper for a person to seek advice as to how to preserve their anonymity in order to avoid being sued. The situation is not unlike that in SRJ v Person(s) Unknown where is was held that there were powerful discretionary reasons not to override the duty of confidence. Even in Hamdan, where the client sought to avoid the operation of the law, there was no basis for holding that privilege did not apply. I reject the prospective applicants’ submission that the publisher’s purpose in withholding his name or avoiding being sued means that the privilege is abrogated.

48    I find that the publisher’s communication of his name to his solicitors is protected by legal professional privilege. The same position applies in relation to the communication of the publisher of his address to his solicitors. Therefore, the application against the solicitors for discovery of documents relating to the publisher’s description cannot succeed.

49    It remains to consider the prospective applicants’ application against the first prospective respondent. The prospective applicants’ solicitors wrote to the first prospective respondent demanding the identity of the publisher of the website. The first prospective respondent’s correspondence in reply confirms that the website was registered with the domain name registrar “CRAZY DOMAINS FZ-LLC” and that it “owns” that company. An ASIC search shows that Crazy Domains FZ-LLC has been deregistered. The first prospective respondent’s correspondence states that it was unwilling to comply with the prospective applicants’ demand, but that it will comply with any Court order.

50    I am satisfied that the first prospective respondent is likely to have control of documents that would help the prospective applicants to ascertain the identity of the publisher of the website. I am satisfied that it is appropriate to order that the first prospective respondent give discovery to the prospective applicants of documents that are in the first prospective respondent’s control relating to the publisher’s description.

51    The prospective applicants initially sought orders that the first prospective respondent give discovery of “all documents related to identifying the description” of the publisher. I indicated that I was unwilling to make an order of such width. The prospective applicants then submitted revised draft orders seeking discovery of “all documents in its control related to the description” of the publisher.

52    In my view, the order sought is still too wide. It must be remembered that an order is sought against a party which is not accused of any wrongdoing against the prospective applicants. The order should be one which is likely to be effective in allowing the prospective applicants to ascertain the identity of the party they wish to sue without being more onerous than necessary to the respondent. I propose to limit the order to requiring discovery of “all documents in its control directly relevant to identification of the name and/or address” of the publisher. I will also require the prospective applicants to notify the first prospective respondent of its entitlement to apply for an order that the prospective applicants give security for and pay the first prospective respondent’s costs and expenses of complying with the order under r 7.29 of the Federal Court Rules.

53    The prospective applicants submit that there should be no order as to the costs of their application against the first prospective respondent. That is appropriate. They accept that they cannot resist an order for costs in favour of the second prospective respondent in the event that their application against the second prospective respondent fails. I will order that the prospective applicants pay the second prospective respondent’s costs of the application.

Associate:    

Dated:    24 August 2018

SCHEDULE OF PARTIES