Background
BPG Pty Ltd, trading as Entry Education, provides vocational education and training courses for aspiring real estate and broking licensees. The Real Estate Institute of New South Wales (REINSW), the industry body for NSW real estate agents, also provides training. BPG obtained documents from the Australian Skills Quality Authority (ASQA) showing complaints and tip-offs about its courses, marketing and operations between October 2022 and September 2024. Some complainants were anonymous or redacted.
BPG initially sought broad preliminary discovery, alleging that REINSW and other industry bodies had coordinated complaints to drive BPG from the market, including a proposed competition-law claim. That case was abandoned as speculative. BPG instead relied on a proposed misleading-or-deceptive-conduct claim under s 18 of the Australian Consumer Law, contending that certain complaints contained false representations about BPG.
The Court’s Holding
Lee J refused preliminary discovery against REINSW under r 7.23 of the Federal Court Rules 2011 (Cth). BPG had not shown a reasonable basis to believe that REINSW itself made, procured or knowingly participated in particular actionable false representations made in trade or commerce. Its proposed claim required too many unsupported inferences concerning the complainants’ identity and capacity, REINSW’s involvement, the commercial character of the communications, and causation of loss.
The Court nevertheless granted limited discovery under r 7.22. BPG had identified particular communications containing allegedly false representations and could not ascertain the identity or description of some makers. REINSW was ordered to disclose, within 28 days, documents in its control relating to the identity or description of any person or corporation that made or supplied a representation to ASQA in the ten scheduled communications. The order excluded documents concerning REINSW’s alleged participation, ASQA’s response, or BPG’s alleged loss. There was no order as to costs.
Key Takeaways
- Rule 7.23 cannot be used to search for facts needed to create a reasonable belief that an identified prospective respondent is liable.
- A complaint to a regulator is not necessarily conduct in trade or commerce merely because its maker is a business or competitor.
- Rule 7.22 may support narrow discovery to identify unknown prospective respondents where their identity may determine whether a viable claim exists.
Why It Matters
The decision draws a firm line between permissible preliminary discovery and an impermissible fishing expedition. A party cannot obtain broad discovery from an identified target based on suspicion of its involvement in a wider campaign.
At the same time, the Court confirmed that a party may obtain confined identification discovery where anonymous communications may have been made by commercial competitors and the identity and capacity of their makers are central to whether an Australian Consumer Law claim is available.