Federal Court of Australia

BPG Pty Limited v Real Estate Institute of New South Wales (Preliminary Discovery) [2026] FCA 1321

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 7.22 of the Federal Court Rules 2011 (Cth), the respondent give discovery within 28 days of all documents that are or have been in its control relating to the identity or description of any person or corporation who made or supplied to the Australian Skills Quality Authority any representation recorded in a communication identified in Schedule A.

2.    Order 1 does not extend to documents bearing merely upon whether the respondent encouraged, procured or participated in the making of a representation, the effect of any representation upon the Australian Skills Quality Authority, or any loss allegedly suffered by the applicant.

3.    The application otherwise be dismissed.

4.    There be no order as to costs.

5.    The parties have liberty to apply to vary orders 1, 2 or 4, provided that any application is made within 48 hours of the publication of these orders.

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

Schedule A

1.    Complaint submitted via asqaconnect on 28 October 2022.

2.    Tip-off, fraud or non-compliance report submitted on 12 October 2023.

3.    Tip-off, fraud or non-compliance report submitted on 19 October 2023.

4.    Redacted email chain from a redacted person/entity to a redacted person/entity sent on 8 February 2024 (4:44pm).

5.    Redacted email chain from a redacted person/entity to a redacted person/entity sent on 22 February 2024 (12:32pm).

6.    Redacted email from ASQA – Industry to a redacted person/entity sent on 6 June 2024 (2:32pm).

7.    Tip-off, fraud or non-compliance report submitted on 13 June 2024.

8.    Tip-off submitted on 19 June 2024.

9.    Tip-off report submitted on 2 September 2024.

10.    Tip-off submitted on 12 October 2023.

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    This is an application for preliminary discovery which has undergone considerable refinement since it was commenced. It is unnecessary to trace every iteration of the case or every category of documents sought along the way, but some account of its evolution is necessary to understand the comparatively narrow basis upon which it now falls to be determined.

2    BPG Pty Ltd, trading as Entry Education (BPG), provides vocational education and training courses, including courses undertaken by persons seeking real estate and broking licences. The Real Estate Institute of New South Wales (REINSW), the prospective respondent, is the peak professional body for real estate agents in New South Wales and also provides vocational education and training services. The Australian Skills Quality Authority (ASQA) is the regulator of registered training organisations (RTOs).

3    After obtaining documents from ASQA, it has become apparent to those controlling BPG that it has, over a period of several years, been the subject of complaints and “tip-offs” made to ASQA concerning aspects of its business, including the duration of its courses, its marketing practices and the manner in which its courses were conducted. Some complainants were identified in documents as members of the public or students; the identity of others has been redacted or otherwise remains unknown. The documentary bundle ultimately relied upon by BPG contains ten such complaints, tip-offs or communications made or sent between October 2022 and September 2024.

4    When the application was first advanced, BPG’s proposed case was ambitious. Its principal contention was that REINSW and other real estate institutes had engaged in a co-ordinated campaign, using the ASQA complaints process and their position within the industry, to divert BPG’s resources into regulatory investigations or, at its highest, to procure its removal from the vocational education market. The principal proposed cause of action was then one arising under s 45 of the Competition and Consumer Act 2010 (Cth) (CCA). BPG sought discovery extending to no less than 34 categories of documents.

5    By the hearing on 16 June 2026, the categories had been significantly reduced. Categories 1 to 6 represented a compression of the former categories 1 to 12, categories 13 to 23 had been abandoned, and attention had become increasingly directed to communications between REINSW and ASQA and between REINSW and other real estate institutes.

6    More significantly, during argument, it became apparent that the s 45 case, upon which the application had largely been constructed, could not sensibly sustain the application for preliminary discovery. The case depended upon inferences as to some co-ordinated arrangement or concerted practice which the material did not reasonably support on the information available. The proposed case was pregnant with speculation.

7    The matter which emerged as potentially more substantial was quite different: whether false representations had been made concerning BPG and whether there might therefore be a claim for misleading or deceptive conduct contrary to s 18 of Sch 2 to the CCA (ACL).

8    That possibility had not been developed with sufficient precision in the material then before the Court. I therefore adjourned the application and afforded BPG an opportunity to identify why it reasonably believed it might have a right to obtain relief against REINSW for a contravention of s 18 of the ACL. That is, why that conduct might be said to be misleading or deceptive, the basis upon which the conduct was said to have occurred in trade or commerce, and how BPG proposed to establish an entitlement to relief.

9    In this regard, I suggested a draft pleading (although necessarily incomplete) would bring into focus why, after making reasonable inquiries, BPG does not have sufficient information to decide whether to start a proceeding in the Court to obtain that proposed relief; why REINSW is likely to have had in its control documents directly relevant to the question whether BPG has a right to obtain the proposed relief; and why there is a reasonable belief that inspection of the documents would assist BPG in making the decision to seek relief.

10    The subsequent submissions, including the draft pleading, have had the useful effect of narrowing the controversy. As foreshadowed, and despite its earlier unarticulated proposed suite of claims, BPG now exclusively relies upon s 18 of the ACL. REINSW itself accurately described this as BPG’s “last remaining purported cause of action”.

11    The question became whether this proposed claim provides a sufficient foundation for relief under r 7.23 or, alternatively, r 7.22 of the Federal Court Rules 2011 (Cth) (Rules).

B    PRELIMINARY DISCOVERY PURSUANT TO THE RULES

12    Rule 7.23 is directed to the case where the description of the prospective respondent has been ascertained, but the prospective applicant, after making reasonable inquiries, does not have sufficient information to decide whether to commence a proceeding against that person. Among other things, the prospective applicant must reasonably believe that it may have a right to obtain relief from the prospective respondent and reasonably believe that the prospective respondent has, is likely to have, has had or is likely to have had in its control documents directly relevant to that question, inspection of which would assist in making the decision whether to sue.

7.23    Discovery from prospective respondent

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

(a)    reasonably believes that the prospective applicant may have the right to obtain relief in the Court from a prospective respondent whose description has been ascertained; and

(b)    after making reasonable inquiries, does not have sufficient information to decide whether to start a proceeding in the Court to obtain that relief; and

(c)    reasonably believes that:

(i)    the prospective respondent has or is likely to have or has had or is likely to have had in the prospective respondent’s control documents directly relevant to the question whether the prospective applicant has a right to obtain the relief; and

(ii)    inspection of the documents by the prospective applicant would assist in making the decision.

(2)    If the Court is satisfied about matters mentioned in subrule (1), the Court may order the prospective respondent to give discovery to the prospective applicant of the documents of the kind mentioned in subparagraph (1)(c)(i).

13    Rule 7.23 is to be construed beneficially, and an application under the rule is not to be converted into a trial of the proposed proceeding: Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193; (2017) 257 FCR 62 (at 64 [2] per Allsop CJ; 93 [119], 95 [126] per Perram J). The relevant belief is that the prospective applicant may have a right to obtain relief. It is unnecessary, of course, to establish that such a right exists: Pfizer (at 66 [8] per Allsop CJ). The prospective applicant must, however, actually hold the asserted belief, and that belief must be reasonably open on the evidence. A belief based on considerations or views that are unreasonable, untenable, irrational or baseless will not suffice: Pfizer (at 81 [69] per Allsop CJ).

14    The requirement of reasonable belief necessarily calls for some consideration of the elements of the proposed cause of action (a task often assisted by the provision of a draft pleading). In McFarlane as Trustee for the S McFarlane Superannuation Fund v IOOF Holdings Limited [2018] FCA 692 (at [63]), Gleeson J explained that r 7.23 requires consideration of the elements necessary to establish the putative cause of action and whether there is reasonable cause to believe that each of those elements might be made out. If there is no reasonable cause to believe that one necessary element may exist, the application cannot succeed.

15    To repeat, this does not require the Court to determine whether the proposed claim will ultimately succeed. But it does mean that the asserted belief must be considered by reference to the proposed cause of action as a whole. Uncertainty concerning one element may be the very reason preliminary discovery is required. But where several necessary elements depend upon speculation, the number and significance of those uncertainties may demonstrate that the asserted belief is not reasonably open on the evidence. In such a case, discovery is sought to ascertain whether grounds for the requisite belief exist, rather than to enable a person who already holds that belief to decide whether to commence a proceeding.

16    The distinction is one of degree. The more speculative the factual basis for one necessary element, the less support that element provides for the asserted belief. Where the proposed cause of action depends upon several such elements, the Court must consider their combined effect. Possibilities do not acquire solidity merely by being piled one upon another. A structure built entirely from “maybes” remains speculative however many storeys it has.

17    The degree of scrutiny required will depend upon the nature of the proposed case. The Court must avoid conducting a mini-trial, but a complex or legally problematic cause of action may require closer consideration of its elements to determine whether the asserted belief is reasonably open: see Benchmark Certification Pty Ltd v Standards Australia International Ltd [2004] FCA 1489; (2004) 212 ALR 464 (at 466 [4], 467 [7], 484–485 [83]–[84], 486–488 [90]–[101] per Emmett J). That consideration does not determine the merits of the proposed claim. Its purpose is to distinguish a reasonable belief that a right to relief may exist from a suspicion that documents, if obtained and favourable, may disclose the ingredients of such a right. Preliminary discovery is not a licence to fossick about in the hope that something valuable may turn up.

18    Rule 7.22 performs a different function. It applies where a prospective applicant may have a right to obtain relief against a prospective respondent but is unable to ascertain the prospective respondent’s description.

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.

Note 1: Control and description are defined in the Dictionary.

Note 2: For how discovery is to be made, see rule 7.25.

(3)    The prospective applicant must provide the person with sufficient conduct money to permit the person to travel to the Court.

Note: Conduct money is defined in the Dictionary.

19    The definition of “prospective applicant” in r 7.21 is also material. It requires the applicant to hold a belief that there may be a right to obtain relief against another person and for that belief to be reasonable: see Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317; (2015) 245 FCR 129 (at 142 [52] per Perram J); Knight Watch Security Pty Limited v Aussie Broadband Limited [2023] FCA 344 (at [11]).

20    The distinction between the two rules assumes particular significance here. BPG’s inability to establish a reasonable belief that it may obtain relief against REINSW does not necessarily answer whether it may have a right to relief against an unidentified maker of one of the representations. Rule 7.22 cannot be used to evade the requirements of r 7.23 or to investigate generally whether REINSW participated in some wider campaign. It may, however, operate where the possible cause of action against an unidentified person is sufficiently apparent and the missing matter is the description of that person.

C    THE PROPOSED ACL CASE

21    BPG’s most recent submissions identify what it describes as the “high watermark” of its proposed ACL case. The ten communications upon which BPG now relies for that purpose are identified in Schedule A to the orders. As previously mentioned, they span approximately two years. BPG says that at least some contain representations made by, or derived from, other RTOs acting commercially, and that the representations about BPG were false or misleading.

22    The schedule is useful because it finally identifies with some precision the factual foundation of the proposed case. By way of example, in relation to the 2022 complaint, BPG points to representations that it advertised a Certificate IV course capable of completion within two or three days and that its employees confirmed this by telephone. BPG asserts those matters were false. In relation to later complaints, BPG also relies upon allegations of academic cheating and non-compliance. There are other complaints and communications upon which BPG relies in a similar way.

23    I am prepared, for present purposes, to proceed upon the basis that BPG has gone beyond a bare assertion that someone, somewhere, said something detrimental about its business. It has identified communications and particular representations and has put forward material said to demonstrate their falsity. It is neither necessary nor appropriate on this application to reach conclusions as to whether the representations were in fact made or were false.

24    The real difficulty, it seems to me, concerns the identity and character of those who made them.

25    BPG accepts that a complaint made by a student in his or her capacity as a student would not constitute conduct in trade or commerce and that, in such a case, no accessorial claim could arise against another person by reason merely of involvement in that conduct. That concession is correctly made.

26    Nor does the fact that a person who happens to conduct a commercial enterprise communicates with a regulator necessarily mean that the communication itself is conduct in trade or commerce. REINSW relies in this regard upon Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 (at 603–604 per Mason CJ, Deane, Dawson and Gaudron JJ) and Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240; (2004) 139 FCR 330 (at 341–343 [51]–[59] per French, Sackville and Conti JJ). Its submission is that complaints to ASQA concerning compliance by a regulated provider are communications made for the purposes of ASQA’s regulatory function and do not acquire a trading or commercial character merely because the complainant happens to be a commercial competitor.

27    There is some apparent force in that submission. Indeed, it demonstrates why BPG cannot obtain broad preliminary discovery simply upon the hypothesis that an RTO made one or more of the complaints. Section 18 is not engaged merely because the maker of a representation carries on a business and has a commercial interest in what it says. The character of the conduct itself must be considered.

28    But this does not dispose entirely of the matter. BPG’s case has developed beyond an allegation that an identified competitor made an ordinary complaint to a regulator concerning compliance by another regulated entity. It contends that some apparent consumers may not have been consumers at all; that some complaints may have been generated by, or at the behest of, competing RTOs; and that the regulatory process may have been used as a means of obtaining a competitive advantage over BPG. Some of the communications relied upon refer expressly to BPG’s prices, its asserted undercutting of competitors and the competitive position of the real estate institutes as providers of vocational education and training.

29    The fact that a communication was made to ASQA does not, without more, determine its character. The identity of the maker, the capacity in which it acted, the circumstances in which the communication was made and the purpose which the conduct served may all bear upon whether the conduct was itself of a trading or commercial character. A genuine complaint by a student concerning regulatory compliance presents one case. A false representation made by a competing corporation may present another case, but competitor status or a commercial motive is not, without more, sufficient. The conduct itself must answer the statutory description. It is unnecessary to decide whether any of the communications in the high-watermark bundle ultimately does so. For present purposes, the known content of the communications, including references to price, undercutting and competitive position, together with the material suggesting that some may have originated from competing RTOs, is sufficient to establish that BPG may have a right to relief against an unidentified person, provided the remaining requirements of r 7.22 are satisfied.

D    RULE 7.23

30    The difficulty for BPG, so far as REINSW is concerned, is that the material does not provide a reasonable foundation for a belief in the broader proposition that REINSW itself made, procured or participated in the making of the relevant actionable representations.

31    There is material upon which BPG places reliance concerning REINSW’s interest in its activities. Mr Shields gives evidence concerning a meeting attended by REINSW and ASQA at which a REINSW representative is said to have urged ASQA to take action against BPG because of its aggressive marketing, low prices and short course durations. That may explain BPG’s suspicion that REINSW had some involvement in what occurred. It does not presently provide a reasonable foundation for the much more specific conclusion necessary to support a reasonable belief in the proposed s 18 ACL case (that REINSW made or was knowingly concerned in particular false representations in trade or commerce).

32    The difficulty becomes especially apparent in relation to the anonymous complainants. BPG says, in substance: that a person described as a student may not really have been acting as a student, that the person may have been acting at the behest of a commercial participant (including an RTO), that REINSW or another industry participant may have been involved, and that the relevant conduct, when its circumstances are eventually uncovered, may turn out to have been in trade or commerce. Its most recent submissions expressly say that preliminary discovery is sought to determine the identity and capacity of the complainant and whether REINSW made, aided, abetted, counselled, procured or induced the complaint.

33    These submissions expose the present difficulty with BPG’s proposed case against REINSW. Its difficulty is not confined to one presently unknown fact. The proposed claim depends upon several propositions, namely: that one or more persons presented as students or other complainants were not acting in that capacity, that they were acting for or at the behest of a commercial participant, that REINSW itself made the relevant representation (or procured or was knowingly concerned in its making), that the making of the complaint was in trade or commerce, that the representation was misleading or deceptive, and, if compensatory relief is sought, that the conduct caused ASQA to take action which caused loss to BPG. The difficulty is not one missing piece in an otherwise completed mosaic. Too much of the picture remains to be supplied by discovery itself.

34    I am satisfied that there is a basis for BPG’s assertion that some identified representations were made and for its contention that they were false. The difficulty lies in the remaining elements of the proposed claim against REINSW. The identity and capacity of the makers are unknown. REINSW’s involvement in the making or procurement of the representations is conjectural. Whether a particular communication with ASQA was conduct in trade or commerce cannot be determined merely from the possibility that its maker was an RTO. The asserted causal connexion between any conduct of REINSW, the regulatory decisions made by ASQA following its own processes, and BPG’s alleged loss also depends upon several presently unsupported propositions.

35    I recognise that some uncertainty is inherent in an application for preliminary discovery and does not itself defeat the application. Indeed, uncertainty lies at the heart of the proper application of the rule. But the degree of speculation affecting the elements of this proposed claim, considered together, prevents me from being satisfied that BPG’s asserted belief in a right to relief against REINSW is reasonably open on the evidence. The case requires more than the resolution of one factual uncertainty. It requires a succession of possibilities to be resolved favourably before an actionable claim against REINSW emerges. The Court cannot begin at the hoped-for destination and work backwards to manufacture the road required to reach it.

36    What BPG presently has is a suspicion that REINSW may have been involved in the making or procurement of one or more complaints and a hope that discovery will disclose facts capable of supporting that suspicion. Preliminary discovery may illuminate a case; it cannot conjure one into existence. Rule 7.23 does not permit the required sequence to be reversed. The reasonable belief required by r 7.23(1)(a) must exist before preliminary discovery is ordered. Discovery may assist a prospective applicant who holds such a belief to decide whether to commence a proceeding; it cannot be ordered for the purpose of ascertaining whether there are grounds upon which the requisite belief might subsequently be formed. BPG has therefore not established an entitlement to preliminary discovery against REINSW under r 7.23.

37    It follows that the wider categories seeking to explore the extent of REINSW’s involvement, its communications with ASQA and other RTOs, questions of accessorial liability and matters going to causation are not available under r 7.23. Given that conclusion, it is unnecessary to determine REINSW’s additional contentions concerning the inquiries made by BPG, whether BPG had already decided to commence a proceeding, or the other requirements of r 7.23. The width and burden of the categories originally sought also cease to arise once the application is confined in the manner explained below.

E    RULE 7.22

38    There is, however, a narrower matter. Once the speculative superstructure is stripped away, a discrete question of identification remains.

39    BPG has identified particular communications containing representations which it says were false. Some were made by persons whose identities have been withheld from it. Others appear, on the material presently available, to have been made by RTOs whose identities are not disclosed. BPG cannot presently know whether those persons were consumers, employees, competitors or corporations conducting competing businesses.

40    That ignorance is important because the identity and capacity of the maker may determine whether BPG has any viable claim at all. A genuine student complaining to ASQA about his or her experience presents the difficulty already identified. An unidentified corporation which competes with BPG and which, in circumstances bearing a trading or commercial character, made representations about BPG which BPG asserts were false presents a materially different case.

41    I do not presently know whether any of the unidentified makers will ultimately prove to be a commercial competitor whose conduct was in trade or commerce. Rule 7.22 does not require BPG already to know the identity or description of such a person; its purpose is to enable that person to be identified where the rule’s requirements are otherwise satisfied.

42    REINSW submits that BPG has not demonstrated that it is unable to ascertain the description of the prospective respondents because it did not first ask REINSW or the other real estate institutes whether they made, or knew the identity of the makers of, the complaints. Although r 7.22 (unlike r 7.23) contains no express requirement of reasonable inquiries, that has been taken to be an implicit requirement: see Manolo Blahnik Worldwide Limited v Estro Concept Pty Limited [2020] FCA 1561 (at [43]). In any event, the adequacy of inquiries is also capable of bearing upon the exercise of the discretion: see John Bridgeman Limited v Dreamscape Networks FZ-LLC [2018] FCA 1279; (2018) 360 ALR 768 (at 772 [9] per Rangiah J).

43    In the present case, BPG obtained the relevant communications through ASQA, but the identities of the makers remain redacted or undisclosed. On 11 December 2024, BPG commenced a proceeding in the Administrative Review Tribunal (ART) seeking review of ASQA’s decision to cancel its registration. In that proceeding, BPG issued a summons requiring REINSW to produce documents. REINSW produced approximately 500 pages of documents to the ART on a USB. BPG did not, however, obtain access to those documents before the ART proceeding was resolved.

44    The material indicates, however, that documents and schedules were prepared by or on behalf of REINSW in response to the summons. BPG relied upon contemporaneous invoice narratives recording the review of schedules of documents prepared by REINSW personnel, including consideration of references to a person described as “AP” or a whistleblower and whether documents could identify that person. This material is relevant both to the attempts already made by BPG to obtain identifying information and to whether REINSW is likely to have documents bearing upon the description of at least one unidentified person.

45    BPG did not make the direct inquiries identified by REINSW. It did, however, seek the relevant information from ASQA and invoke the formal process available in the ART. In the circumstances described above, including the confidentiality attaching to the complaints and the practical limits upon the information available from ASQA, I am satisfied that BPG has made reasonable inquiries and remains unable to ascertain the description of each relevant prospective respondent. I am also satisfied that BPG in fact holds the requisite belief and that, having regard to the matters identified above, the belief is reasonably based.

46    The material is also sufficient to establish that BPG may have a right to obtain relief against one or more unidentified persons. The high-watermark bundle contains identified communications recording particular representations. BPG has articulated why it says those representations were false. Some communications refer to BPG’s prices, its asserted undercutting of competitors and the competitive position of the real estate institutes, while the material provides a basis for thinking that at least some of the information may have originated from an RTO rather than a genuine consumer. Whether that proves to be so, and whether the conduct was in trade or commerce, cannot presently be known. Those are the matters which make the description and capacity of the maker significant. The threshold imposed by r 7.22(1)(a) is not a requirement to demonstrate a prima facie case: see Knight Watch Security Pty Limited v Aussie Broadband Limited [2023] FCA 344 (at [11]–[12], [18]–[19]).

47    I am satisfied that REINSW has, or is likely to have, control of documents capable of assisting in ascertaining the description of at least some of the unidentified makers. This conclusion is supported by the meeting between ASQA and representatives of the state real estate institutes, the subsequent communications concerning information supplied by those institutes, and, more particularly, the documentary material recording the preparation and review by REINSW personnel of documents and schedules bearing upon the identity of a person described as a whistleblower.

48    This conclusion should not be overstated. The evidence does not establish that REINSW possesses information identifying every complainant, and r 7.22 does not authorise discovery merely because documents concerning BPG may exist. The order should therefore be confined to documents in REINSW’s control which disclose or assist in ascertaining the description of the person or corporation responsible for one or more of the particular communications identified in the high-watermark schedule.

49    The relief must be confined to the purpose for which r 7.22 exists. It does not entitle BPG to discovery of the full history of communications between REINSW, ASQA and other industry participants; documents directed to whether REINSW encouraged, assisted or procured complaints; documents going to causation; or documents by which BPG might investigate generally whether some wider campaign existed. Those matters reproduce, in another form, the exploratory exercise which cannot be justified under r 7.23. The limited identification function of r 7.22 cannot become a side door through which the broader investigation rejected under r 7.23 is allowed to re-enter.

50    What BPG is entitled to obtain is information sufficient to identify the person or corporation responsible for making those particular representations relied upon as the high watermark of its proposed s 18 ACL case, where REINSW has or is likely to have documents which will disclose that identity or description.

51    Once those persons are identified, BPG will be able to investigate and decide for itself whether the circumstances in which any particular representation was made were such that the conduct was in trade or commerce, whether the representation was misleading or deceptive, whether BPG suffered loss by reason of it and, ultimately, whether proceedings should be commenced. Rule 7.22 does not provide a warrant to obtain the material necessary to prove those matters in advance.

F    DISPOSITION

52    The application has travelled a very considerable distance from where it began. What commenced as an application based principally upon an alleged co-ordinated campaign contrary to s 45 of the CCA, supported by very extensive categories of discovery, ultimately came to rest upon a much narrower proposed claim under s 18 of the ACL. That process of refinement has served a useful purpose because it has exposed both the limit of BPG’s present case and the discrete respect in which preliminary discovery is justified.

53    BPG has not established an entitlement to preliminary discovery under r 7.23 against REINSW. The evidence concerning REINSW’s participation in the making of actionable representations remains too conjectural to establish the reasonable belief required by that rule.

54    But BPG has identified particular representations which it has a reasonable basis for asserting were false, and there is sufficient material to conclude that at least some may have been made by unidentified commercial participants. To the extent REINSW has documents which would identify the person or corporation which made those representations, the requirements of r 7.22 are satisfied.

55    I will therefore order REINSW to give discovery of documents that are or have been in its control relating to the identity or description of any person or corporation who made or supplied to ASQA any representation recorded in a communication identified in Schedule A. The order will not extend to documents bearing merely upon whether REINSW encouraged, procured or participated in making the representations, their effect upon ASQA, or any loss allegedly suffered by BPG.

56    As to costs, as I have noted, BPG has succeeded only in obtaining a relatively confined part of the relief it originally sought. The application was initially advanced in a wide-ranging form, occupied two hearing days and was brought into its present focus only after the Court required BPG to formulate its proposed case in a draft pleading and, subsequently, to identify the documents representing the high watermark of that case. Those considerations would ordinarily provide substantial support for an order requiring BPG to pay at least part of REINSW’s costs. On the other hand, BPG has for some time sought to ascertain the identity of those responsible for the relevant representations and has ultimately established an entitlement to limited but substantive relief directed to that end. Doing the best I can to reflect that mixed outcome, I consider that the appropriate order is that there be no order as to costs.

57    I have not heard the parties as to the precise terms of the discovery order or as to costs following the publication of these reasons. I will therefore grant liberty to apply to vary either the terms of the discovery order or the order as to costs, provided that any such application is made within 48 hours. That liberty is not intended to provide an occasion to reargue the conclusions reached in these reasons. It should be exercised only if the operative wording of the orders does not give effect to their evident purpose or produces some practical unfairness which has not presently been brought to my attention.

Associate:

Dated: 8 September 2026