JALAGGE -v- ARACHCHILAGE [2026] WASC 202

[2026] WASC 202 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : JALAGGE -v- ARACHCHILAGE [2026] WASC 202 CORAM : MASTER RUSSELL HEARD : 30 OCTOBER 2025 DELIVERED : 28 MAY 2026 FILE NO/S : CIV 1948 of 2025 BETWEEN : ROSHANA CHULARATNE NEELAGAMA JALAGGE Plaintiff AND GAYAN WEERASOORIYA ARACHCHILAGE Defendant Catchwords: Practice and procedure - Application for pre-action discovery pursuant to O 26A r 3 of the Rules of the Supreme Court 1971 (WA) - Conditions to be satisfied to enliven court's power to order pre-action discovery - Whether court's power to make orders sought enlivened - Whether utility in making orders sought - Turns on own facts Legislation: Rules of the Supreme Court 1971 (WA) O 26A r 3 -- 1 of 24 -- [2026] WASC 202 Page 2 Result: Plaintiff's application for pre-action discovery dismissed Category: B Representation: Counsel: Plaintiff : K H Kwan Defendant : J Di Lena Solicitors: Plaintiff : Khai Kwan Defendant : Law One (WA) Pty Ltd Cases referred to in decision(s): Antz Inya Pantz Coffee Company Pty Ltd v Muhl [2023] WASC 320 Blythe v Western Australia [2008] WASCA 10 Hooper v Kirella (1999) 96 FCR 1 John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989) McIntosh v Peterson [No 2] [2024] WASC 428 NW v Bechtel (Western Australia) Pty Ltd [2014] WASC 375 Reynolds v Higgins [2024] WASC 260 Reynolds v Higgins [2025] WASC 345 The Hancock Family Memorial Foundation Limited v Fieldhouse [No 2] [2008] WASC 147 Westpoint Management Pty Ltd v Goakes [2002] WASCA 317 -- 2 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 3 MASTER RUSSELL: Overview 1 The plaintiff, Dr Roshana Chularatne Neelagama Jalagge, describes himself as a businessman in the aged care sector and, until June 2025, was Honorary Consul for Sri Lanka. He seeks orders for pre-action discovery pursuant to O 26A r 3 of the Rules of the Supreme Court 1971 (WA) (RSC) against the defendant, Gayan Weerasooriya Arachchilage, to identify users of a private Facebook group known as Sri Lankans in Perth (Facebook Group). 2 The defendant is the administrator of the Facebook Group, which he undertakes on a voluntary basis for the benefit of the Sri Lankan Community in Perth. 3 The plaintiff brings his application to identify users of the Facebook Group described as anonymous members in relation to certain comments made by them in posts on the Facebook Group between 24 June 2025 and 29 June 2025. The plaintiff claims that such comments were defamatory and that, despite reasonable enquiries, he has been unable to ascertain a description of the potential parties to enable him to bring a claim against them. 4 The defendant opposes the application for pre-action discovery on the basis it is not properly made, and the plaintiff has not satisfied the jurisdictional requirements. Further, the defendant says he has already provided the plaintiff with all the information he has and is unable to identify the remaining anonymous members. 5 It was submitted on the defendant's behalf that, in the circumstances, if the court is satisfied its power to make the orders sought is enlivened, it should not exercise its discretion to order pre- action discovery as such would be of no utility or benefit to the plaintiff. 6 For the following reasons, I am not satisfied that the plaintiff has met the jurisdictional requirements. As such, the court's power to make an order for pre-action discovery against the defendant pursuant to RSC O 26A r 3 is not enlivened. In any event, I would not exercise my discretion to order pre-action discovery, as I do not consider there is utility in making the orders sought. -- 3 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 4 Materials relied on 7 In support of his application, the plaintiff filed an outline of submissions on 5 September 2025, submissions in reply on 12 September 2025, and read and relied on: (a) an affidavit sworn by him on 19 August 2025 (Jalagge Affidavit); (b) an affidavit sworn by his solicitor, Khai Kwan, on 20 August 2025 (Kwan Affidavit); and (c) an affidavit of Anuruddha Liyanage, a certified translator accredited by the National Accreditation Authority for Translators and Interpreters (NAATI), sworn on 29 August 2025 (Liyanage Affidavit), translating the relevant Facebook Group posts from Sinhalese to English. 8 The defendant filed an outline of submissions on 8 September 2025 and read and relied on two affidavits affirmed by him on 4 September 2025 (First Arachchilage Affidavit) and 24 September 2025 (Second Arachchilage Affidavit). Factual background 9 The relevant factual background derived from the evidence filed is as follows. 10 It is not in issue that between 24 June 2025 and 29 June 2025 various comments were made on a post on the Facebook Group, including by anonymous members. Nor is it in issue that, on about 29 June 2025, shortly after they were posted, the defendant deleted the posts from the Facebook Group.1 11 The plaintiff does not take issue with the initial post made on 24 June 2025. His issue is with some of the comments made on that post. The initial post was made by an anonymous member, who the defendant has identified and says is known to the plaintiff.2 That post and most of the comments on it were written in Sinhalese and have been translated into English, as referred to in and attached to the Liyanage Affidavit.3 No issue is taken with the translation evidence. 1 Jalagge Affidavit [7]; First Arachchilage Affidavit [5]; ts 16. 2 Second Arachchilage Affidavit [5] - [6], 'GW-2', 'GW-3'. 3 Liyanage Affidavit [7] - [8], 'A', 'B'. -- 4 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 5 12 The initial post on the Facebook Group was as follows:4 Dear Perth friends, As many of you may be aware, after Mr Rosh Jalagge's resignation, Pert (sic) Sri Lankan Consular Office has been closed. Also, by today, we could see that there is a huge support for Mr Jalagge and his dedication in this community from various quarters. I am very happy about it, but believe we all should come together to do more than that. I feel we can organise a felicitation to honour him and as a grateful society, we can do something for him. If we all speak as a community raise our voice for him and service he rendered it will be an utmost appreciation we can offer. With that effort, we should be able to remove any impact or reason that led to this decision. We can carry this message to the government or the Foreign Ministry, to the present government. If we can make them aware about his contribution to the society, can't we keep him as the Hon. Consul and continue to benefit thousands of people? 13 A number of comments were made on the initial post, some of which were supportive and joined in the apparent praise of the plaintiff and his service. 14 The plaintiff takes issue with some of the posts that were made. He seeks to ascertain the identity of certain anonymous members of the Facebook Group who commented on the initial post. He says his application 'relates to the smearing of [his] reputation' as a businessman and as former 'Honorary Counsel' (sic) for Sri Lanka.5 15 By letter dated 11 July 2025 from the plaintiff's solicitor,6 the plaintiff demanded that the defendant disclose all records, data, logs and information within his possession, custody, or control that identify or could lead to the identification of the anonymous members responsible for the 'postings' on the Facebook Group, including user profiles, IP addresses, registration details and any communication related to the posts. 16 Attached to the plaintiff's solicitor's letter was a list of 15 anonymous members, each referring to the number of the anonymous member of the Facebook Group and identifying the 4 Liyanage Affidavit [8], 'B', under heading 'Page 3'. 5 Jalagge Affidavit [2]. 6 First Arachchilage Affidavit [4], 'GW-1'. -- 5 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 6 relevant posts by reference to the page number of the attachment which contained a copy of the post. 17 The letter demanded provision of the information requested within 14 days of the date of the letter and stated, amongst other things, that legal proceedings would be commenced seeking an order pursuant to RSC O 26A r 3, if the information was not provided within that time. 18 The defendant's solicitor responded to the plaintiff's demand by letter dated 24 July 2025.7 Amongst other things, in that letter, the defendant's solicitor stated that, due to the terms and conditions of the Facebook Group, the defendant could not voluntarily provide the requested information to the plaintiff. The letter indicated that the defendant would not oppose a properly made application for pre-action discovery pursuant to RSC O 26A r 3, on the basis that the plaintiff pay the defendant's reasonable legal costs and reasonable costs of compliance with any order for pre-action discovery. 19 The defendant's solicitor also stated in the letter that the post the defendant appeared to be concerned with had been deleted from the Facebook Group on 29 June 2025 and, as the relevant post had been deleted, the defendant no longer had access to it or the information that the plaintiff was seeking.8 The defendant's solicitors stated that, as such, any order for the defendant to provide pre-action discovery would not yield the information sought by the plaintiff, and that it may be more appropriate for the plaintiff to seek an order against Meta Platforms Inc (Meta), the company that owns and operates the social media platform, Facebook.9 20 The defendant deposes in the First Arachchilage Affidavit that when he deleted the post, all the comments, including the names of the anonymous users who posted comments were automatically deleted. He states that, even as the administrator of the Facebook Group, he was no longer able to see the post or any of the comments posted.10 21 Before he deleted the post, the defendant took screenshots of comments made by anonymous posters 238, 372 and 385. He states that he took the screenshots of those posts because he knows those 7 Jalagge Affidavit [8], 'Rosh-2'; Kwan Affidavit [7], 'KHK-3'. 8 Jalagge Affidavit [8], 'Rosh-2', page 21; Kwan Affidavit [7], 'KHK-3', page 27. See also First Arachchilage Affidavit [5] - [6]. 9 Jalagge Affidavit [8], 'Rosh-2', page 22; Kwan Affidavit [7], 'KHK-3', page 28. 10 First Arachchilage Affidavit [6]. -- 6 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 7 individuals.11 He deposes that he does not know and cannot recall the names of any of the other anonymous members of the Facebook Group that the plaintiff seeks information about.12 22 In the Kwan Affidavit, Mr Kwan suggests, by reference to Meta's Help Center, that as administrator of the Facebook Group, the defendant may be able to access the activity log to identify the anonymous members.13 The defendant deposes that he has followed the steps set out but has not been able to recover the deleted post or any of the comments.14 23 On 12 September 2025, the defendant's solicitor sent a letter by email to the plaintiff's solicitor enclosing copies of the screenshots referred to in the First Arachchilage Affidavit together with a screenshot of the author of the original post.15 24 The letter also said, as stated in the First Arachchilage Affidavit, that the defendant does not have any further documents in his possession, custody or control relating to the identity of the requested anonymous members and does not know or remember the names of any of the other anonymous members of the Facebook Group.16 The application and orders sought 25 In the originating summons, the plaintiff sought orders pursuant to RSC O 26A r 3(4) requiring the defendant to provide discovery of information and documents in his possession custody and control sufficient to identify the individuals who authored alleged defamatory posts published on the Facebook Group between 24 and 29 June 2025. He also sought orders that the defendant be examined as to the description of the potential parties, pursuant to RSC O 26A r 3(5) and r 3(6). 26 At the hearing of the application, the plaintiff's counsel identified the posts on the Facebook Group said to be defamatory by reference to the Jalagge Affidavit and the relevant translation in the Liyanage Affidavit.17 Counsel said he would confirm instructions as to whether 11 First Arachchilage Affidavit [7]. 12 First Arachchilage Affidavit [8]. 13 Kwan Affidavit [8], 'KHK-4'. 14 First Arachchilage Affidavit [9] - [10]. 15 Second Arachchilage Affidavit [3] - [5], 'GW-2'. 16 Second Arachchilage Affidavit [4], 'GW-2', page 3. 17 Jalagge Affidavit [6], 'Rosh-1'; Liyanage Affidavit [8], 'B'. -- 7 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 8 the application was pressed in relation to discovery of documents or information to identify some of the anonymous members. 27 The plaintiff subsequently filed an amended minute of proposed orders18 seeking orders in the following terms: 1. Defendant make discovery of all documents within the meaning of Order 26A Rule 3(4)(a) & (b) of the Rules of the Supreme Court 1971 (WA) to identify the real or official names of the anonymous parties referred in paragraph 6 of Dr Roshana Jalagge's Affidavit dated 19.8.25 that are or have been in their possession that may assist the Plaintiff as listed below: a. Anonymous member 385 at page 8.10.18. b. Anonymous member 661 at page 8. c. Anonymous member 372 at page 11. d. Anonymous member 449 at page 12. e. Anonymous member 754 at page 12. f. Anonymous member 727 at page 13. g. Anonymous member 567 at page 14. h. Anonymous member 203 at page 14. i. Anonymous member 859 at page 16. j. Anonymous member 993 at page 16. k. Anonymous member 361 at page 17. 2. Defendant to pay the Plaintiff's Costs to be taxed if not agreed; and 3. Any other order this Court sees fit. 28 I have proceeded on the basis that the plaintiff does not press his claim for pre-action discovery to identify anonymous members 238, 429, 796, or 840, which have been removed from the list of anonymous members in the amended minute of proposed orders. Nor are orders sought, at this stage, to examine the defendant. As indicated at the hearing of the application, whether any such orders may be necessary 18 Amended minute of proposed orders filed on 31 October 2025. -- 8 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 9 or appropriate will depend on any affidavit filed by the defendant, if orders are made for the defendant to provide pre-action discovery. Relevant legal principles 29 The plaintiff seeks pre-action discovery from the defendant to identify a potential party pursuant to RSC O 26A r 3, which provides: 3. Discovery etc. to identify a potential party (1) This rule applies if a person who appears to have a cause of action against a person (the potential party) wants — (a) to commence proceedings against the potential party; or (b) to take proceedings against the potential party in the course of an action to which the person is a party, but the person, after reasonable enquiries, has not been able to ascertain a description of the potential party sufficient for the purposes of doing so. (2) If there are reasonable grounds for believing that another person (the non-party) had, has, or is likely to have had or to have, possession of information, documents or any object that may assist in ascertaining the description of the potential party, the person may apply for an order under this rule. (3) The application shall be supported by an affidavit and a copy of both shall be served on the non-party. (4) On the application the Court may order the non-party, and if the non-party is a body corporate, a person having the management of the body to do either or both of the following: (a) to give discovery to the applicant of all documents that are or have been in the non-party's possession relating to the description of the potential party; (b) to personally attend the Court to be examined in relation to the description of the potential party. (5) If the Court orders a person to personally attend the Court, it may order the person to produce to the Court -- 9 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 10 any document or object in the non-party's possession that relates to the description of the potential party. (6) The Court may direct that the examination of the person be by a registrar. (7) A person required to personally attend the Court shall be entitled to the like conduct money and payment for expenses and loss of time as on an attendance at a trial in Court. 30 The principles that apply to an application for pre-action discovery pursuant to RSC O 26A r 3 are well established. They were summarised in Reynolds v Higgins [2024] WASC 260.19 As I also refer to the substantive decision in the subsequent defamation proceedings,20 I will refer to the decision relating to the application for pre-action discovery in these reasons as the Reynolds Discovery Reasons and to the decision in the defamation proceedings as Reynolds v Higgins. 31 In order to enliven the court's discretion to make an order under RSC O 26A r 3, an applicant for pre-action discovery must establish that each of the following conditions are satisfied:21 1. The plaintiff wants to commence proceedings against the potential party or parties. 2. The plaintiff has made reasonable enquiries to ascertain a description of the potential party or parties sufficient for the purposes of commencing proceedings against them. 3. The plaintiff has not been able to ascertain a description of the potential party or parties sufficient for the purpose of commencing proceedings against them. 4. There are reasonable grounds for believing that the non-party (the defendant) had, has, or is likely to have had or to have, possession of information or documents that may assist in ascertaining the description of the potential party or parties. 19 Reynolds v Higgins [2024] WASC 260 (Reynolds Discovery Reasons) [31] - [34] (Quinlan CJ). 20 Reynolds v Higgins [2025] WASC 345 (Tottle J). 21 Reynolds Discovery Reasons [31], referring to The Hancock Family Memorial Foundation Limited v Fieldhouse [No 2] [2008] WASC 147 (Hancock Family Memorial Foundation) [19] (Le Miere J); NW v Bechtel (Western Australia) Pty Ltd [2014] WASC 375 (NW v Bechtel) [13] (Master Sanderson). -- 10 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 11 32 Another important criterion is that the plaintiff appears to have a cause of action against the potential party or parties. Le Miere J stated in The Hancock Family Memorial Foundation Ltd v Fieldhouse:22 An order for discovery to identify a potential party is not made unless it would be reasonable for the applicant to bring a proceeding against the prospective defendant. A prima facie case need not be shown, but there must be some indication that the applicant has a cause of action. An order for discovery will not be made if the prospective action is merely speculative: Stewart v Miller [1979] 2 NSWLR 128. 33 In the Reynolds Discovery Reasons,23 Quinlan CJ also referred to NW v Bechtel (Western Australia) Pty Ltd,24 in which Master Sanderson said: It is clear the plaintiff does not have to demonstrate a prima facie case. It is not even necessary for the plaintiff to establish there is a serious question to be tried: see Wyeth v Secretary, Department of Health and Ageing [2009] FCA 313 [25] (Jacobsen J). Although it is difficult to identify a consistent thread through the myriad of decisions it would seem discovery will not be ordered where the potential action is no more than speculative. Moreover, if there is a defence which must succeed there would be no utility in making an order and the application could not succeed. 34 Even where the jurisdictional conditions are met, an order for discovery to identify a potential party is a discretionary one. The considerations relevant to the exercise of the court's discretion are not closed. Ultimately, an applicant must show that the order sought is necessary in the interests of justice. That is, that the making of the order is necessary to provide the applicant with an effective remedy in respect of the actionable wrong of which they complain.25 The utility of making the orders sought is also a relevant consideration.26 35 It was submitted on behalf of the plaintiff that it is in the interests of justice for the court to make orders requiring the defendant to give pre-action discovery. It was suggested that if the defendant is not ordered to provide discovery of documents or information he has about the identity of the anonymous members, it would send a message to 22 Hancock Family Memorial Foundation [20], referred to by Quinlan CJ in the Reynolds Discovery Reasons [32]. 23 Reynolds Discovery Reasons [33]. 24 NW v Bechtel [16]. 25 Reynolds Discovery Reasons [34], citing Hancock Family Memorial Foundation [31], citing in turn John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346, 357; Hooper v Kirella (1999) 96 FCR 1 [34]. 26 See Reynolds Discovery Reasons [9]. -- 11 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 12 others that they can allow people to post defamatory comments on social media and then delete them. 36 I do not consider that making or refusing to make the orders sought in this, or any other case, would send such a message to others. Each case should be considered on its own merits, having regard to the facts of the particular case and the principles I have outlined. The issues 37 It is not in issue that the plaintiff has been unable to ascertain a description of the anonymous members of the Facebook Group sufficient for the purposes of taking proceedings against them. The defendant's primary contention is that the plaintiff has not satisfied each of the other conditions required to enliven the court's power to make orders for pre-action discovery. 38 The defendant's secondary contention is that, if the court considers its power to order pre-action discovery is enlivened, it should refuse to exercise its discretion to order non-party discovery against the defendant because: (a) the defendant has deleted the post, which includes the comments made and is unable to recover them or any information about the authors of the comments; (b) the defendant has informed the plaintiff and affirmed that he does not have any documents or information disclosing the identity of any of the anonymous members except for anonymous members 238, 372 and 385, which have been provided to the plaintiff. 39 The defendant also opposed any order being made that he be examined on the basis that such an order is rare and exceptional and not warranted in the circumstances. As noted, the plaintiff no longer presses for such an order, at this stage. 40 The issues that arise for determination in relation to whether the plaintiff has satisfied the jurisdictional requirements are whether the plaintiff has demonstrated that: (a) he appears to have a cause of action in defamation against the anonymous users of the Facebook Group he seeks to identify (the potential parties); -- 12 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 13 (b) he wants to commence proceedings against the potential parties; (c) he has made reasonable enquiries to ascertain a sufficient description of the potential parties to commence proceedings against them; and (d) there are reasonable grounds for believing that the defendant had, has or is likely to have had or to have, possession of information or documents that may assist in ascertaining a sufficient description (the 'real or official names') of the potential parties. 41 In relation to the first of those, I am not required to determine whether the plaintiff has a good claim in defamation against each of the anonymous members of the Facebook Group alleged to have posted a defamatory comment. Nor am I required to determine if any such claim will be to the plaintiff's ultimate benefit. However, I must be satisfied that it would be reasonable for the plaintiff to bring a claim in defamation against the anonymous members sought to be identified and that any claim against them is more than merely speculative. 42 If I am satisfied that the jurisdictional conditions have been met and the court's power to make orders pursuant to RSC O 26A r 3 is enlivened, I must then consider the exercise of the discretion to make the orders sought. 43 Before considering whether the plaintiff appears to have a cause of action in defamation against the anonymous members of the Facebook Group, I consider whether the plaintiff has satisfied the other jurisdictional requirements. Has the plaintiff demonstrated that he wants to commence proceedings against the anonymous members of the Facebook Group? 44 Although submissions were made on behalf of the plaintiff that he wants to commence proceedings in defamation against the anonymous members of the Facebook Group, as submitted on behalf of the defendant, the plaintiff has not adduced any admissible evidence that he wants to do so. -- 13 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 14 45 In the Jalagge Affidavit,27 the plaintiff states: … this application relates to the smearing of my reputations in both legs by anonymous posters in a FaceBook Group known as Sri Lankans in Perth. … 46 The plaintiff does not specifically depose in that paragraph or elsewhere in the Jalagge Affidavit that he wants to commence proceedings against the anonymous members of the Facebook Group. 47 Mr Kwan refers to the commencement of a defamation suit against the anonymous members of the Facebook Group in paragraph 5 of the Kwan Affidavit. The defendant objected to the part of that paragraph, which is highlighted for ease of reference in bold text, below: The Applicant will commence a defamation suit against the persons (once identified) in postings written in Sinhalese on said Group, the postings are now shown to me and exhibited as "KHK-2". (emphasis added) 48 The grounds of the defendant's objection are that the statement made by Mr Kwan is expressed as an inadmissible conclusion. He does not set out the facts upon which the conclusion is based and has failed to comply with RSC O 37 r 6(3)(a), which requires a deponent to state the source or grounds of any statement of information or belief. 49 For the reasons that follow, the defendant's objection to the part of paragraph 5 of the Kwan Affidavit highlighted in bold text should be and is upheld. 50 Mr Kwan states in the Kwan Affidavit that:28 Save where otherwise stated, I make this affidavit from my own knowledge. Where I depose to facts or matters based on information provided to me, I believe that information to be true and correct. 51 Mr Kwan then states that he is informed by the plaintiff and believes that 'several anonymous postings have smeared [the plaintiff's] personal and business reputations by connecting him to political events in Sri-Lanka (sic) which is known to be false'.29 He then goes on to make the impugned statement in paragraph 5, as set out in bold text in [47] above. 27 Jalagge Affidavit [2]. 28 Kwan Affidavit [3]. 29 Kwan Affidavit [4]. -- 14 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 15 52 Mr Kwan also refers in the Kwan Affidavit, in general terms, to efforts having been made to ascertain the identities and addresses of the 'defendants in connection with the contemplated defamation proceedings'.30 53 It was submitted, on behalf of the plaintiff, that Mr Kwan's statement that the plaintiff will commence a defamation suit is obviously within Mr Kwan's knowledge and that this intention was articulated in the letter of demand that he sent to the defendant, which stated that the plaintiff had an actionable claim.31 54 None of the affidavits relied upon by the plaintiff attach a copy of the letter of demand. A copy of a letter of demand sent by Mr Kwan to the defendant dated 11 July 2025 is attached to the First Arachchilage Affidavit.32 Although that letter includes a statement to the effect that the plaintiff has a claim for defamation against 15 anonymous members of the Facebook Group, and demands disclosure of information to identify those members, it does not state that the plaintiff wants to commence a proceeding against them. 55 RSC O 37 r 6(1) provides that an affidavit must be confined to such facts as the deponent is able of their own knowledge to prove. RSC O 37 r 6(2)(c) allows an affidavit to contain statements of information or belief if the affidavit is made for the purposes of interlocutory proceedings. 56 However, RSC O 37 r 6(3A) provides that, subject to some exceptions which do not apply in this case, an affidavit containing statements of information or belief must set out the sources or grounds of that information or belief. Mr Kwan does not state that he is informed by the plaintiff and that he believes that the plaintiff wants to commence a proceeding. He merely states, as a conclusion, that the plaintiff will commence a defamation suit against the anonymous members who made comments. 57 Howard J considered the importance of compliance with RSC O 37 r 6 in Antz Inya Pantz Coffee Company Pty Ltd v Muhl.33 That decision also relates to an application for pre-action discovery, 30 Kwan Affidavit [7]. 31 Plaintiff's reply submissions [5]. 32 First Arachchilage Affidavit [4], 'GW-1'. 33 Antz Inya Pantz Coffee Company Pty Ltd v Muhl [2023] WASC 320 (Antz Inya Pantz) [14] - [18]. -- 15 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 16 although against a potential party under RSC O 26A r 4. His Honour stated:34 In this jurisdiction it is not common for there to be cross-examination on affidavits filed in interlocutory proceedings. The requirement that the deponent sets out the sources or grounds of their statements of information or belief is important for the opposing party in its assessment of what, if any, evidence it might seek to adduce in reply or opposition. Further, it allows the Court some ability to make an assessment of the cogency and reliability of the statements made by a deponent. Without compliance with O 37 r 6 there is a real danger that an affidavit turns into an ipse dixit exercise on the part of the deponent. 58 As referred to by Howard J, the importance of compliance with RSC O 37 r 6 has been reinforced by the Court of Appeal.35 In Westpoint Management Pty Ltd v Goakes,36 Wheeler JA said: If the proceeding is interlocutory, the Rules require that the statements of information or belief must set out sources or grounds of that information and belief. The requirement is an important one for a number of reasons. It reveals the original source of the hearsay information and provides some opportunity to an opponent to counter or to challenge it and it enables a prosecution for perjury and a proper case if necessary. Further, in a case such as the present, where a judge or a master hearing such an application may refuse to accept an assertion in an affidavit if it appears inherently incredible and inconsistent with contemporary documents or for a number of other reasons which are well understood, then sources of information and belief assist in the determination of whether the assertion should be accepted. It is not, therefore, a requirement of the Rules which may be ignored in the preparation of such an affidavit. 59 Despite having sworn an affidavit himself in support of the application, the plaintiff has not deposed that he wants to commence a proceeding in defamation against the unidentified members of the Facebook Group. Mr Kwan's affidavit merely states as a conclusion that a defamation suit will be commenced. He does not state that the plaintiff wants to commence proceedings or that he has been informed of the plaintiff's intention to do so and that he believes such to be true. 60 The fact that an applicant for an order for pre-action discovery wants to commence a proceeding against a potential party or parties is a 34 Antz Inya Pantz [15]. 35 Antz Inya Pantz [16] - [17], referring to Blythe v Western Australia [2008] WASCA 10 [43], [44] (Pullin & Buss JJA), citing Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989) and Westpoint Management Pty Ltd v Goakes [2002] WASCA 317 (Westpoint v Goakes) [14] (Wheeler JA). 36 Westpoint v Goakes [14]. -- 16 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 17 fundamental requirement. It is clearly expressed in RSC O 26A r 3(1)(a) as one of the bases upon which r 3 applies and is one of the conditions required to be satisfied before the court may exercise its discretion to make an order for pre-action discovery against a non-party. It is not something the court should be left to infer. It is a matter that should be clearly expressed and deposed to by the applicant for pre-action discovery in their supporting affidavit. The applicant in this case has not done so. 61 I am not satisfied, on the evidence adduced, that the plaintiff has demonstrated that he wants to bring proceedings against the anonymous members of the Facebook Group. 62 As that condition has not been established, the court's power to make an order pursuant to RSC O 26A r 3 is not enlivened. As such, the plaintiff's application should be dismissed. 63 Even if I had been satisfied that this condition had been met, for the reasons that follow, the plaintiff has not met all of the other jurisdictional requirements. In any event, I would not exercise my discretion to order pre-action discovery because I do not consider there is utility in making the orders sought. Has the plaintiff made reasonable enquiries? 64 Mr Kwan deposes in the Kwan Affidavit that he, the defendant and a Mr Dinu Ekanayake have undertaken 'multiple efforts to ascertain the identities and addresses' of the anonymous members of the Facebook Group.37 There is no evidence as to what efforts or enquiries have been made by or on behalf of the plaintiff, other than the demand made of the defendant. 65 In the plaintiff's responsive submissions, it is submitted, in effect, that the court may infer that reasonable enquiries had been undertaken before his solicitor sent a letter of demand to the defendant. I do not accept that submission. It is for an applicant for pre-action discovery to satisfy the court as to what enquiries they have made to obtain the documents or information sought so as to obtain a sufficient description of the potential party and, that despite reasonable enquiries, they have been unable to do so. 66 As outlined, the defendant deposes that, as the post has been deleted, he is unable to access the names of or information about the 37 Kwan Affidavit [7]. -- 17 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 18 anonymous members of the Facebook Group. It was submitted on his behalf that, an application for pre-action discovery may have been more appropriately brought against Meta, the owner and operator of Facebook, which would have access to information about users of its platform. 67 In the court's experience, applications seeking pre-action discovery to ascertain the identity of users of an internet platform such as Facebook, or other internet-based forums on which users post information or make comments, are generally made to the owner or operator of an internet-based platform or forum. It is those entities that will most likely have documents or information such as their name, address and internet protocol (IP) address relating to the identity of its users. 68 There is no evidence that the plaintiff has made enquiries of Meta to ascertain whether it could provide documents or information to the plaintiff to enable him to ascertain the names and addresses of the anonymous members of the Facebook Group. It seems to me such would be a reasonable enquiry for the plaintiff to have made, rather than to only demand and seek discovery from the defendant. Are there reasonable grounds for believing that the defendant had, has or is likely to have had or to have, possession of information or documents that may assist in ascertaining the description of the anonymous members? 69 As already referred to, it is not in issue that the defendant deleted the original post, which included the comments made, on 29 July 2025. The defendant deposes that, upon deleting the post, the names of the anonymous members who posted comments were automatically deleted from the Facebook Group and, even as the administrator, he was no longer able to see the post or any of the comments posted.38 70 Attached to the Kwan Affidavit is a copy of an extract from Facebook's Help Center, which Mr Kwan deposes, and submits, provides instructions as to how an administrator of a private Facebook group can access an activity log. It was suggested this could be used by the defendant to recover the deleted post.39 The defendant deposes that 38 First Arachchilage Affidavit [5] - [6]. 39 ts 49. See Kwan Affidavit [8], 'KHK-4'. -- 18 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 19 he has attempted to recover the post by following the steps set out, but he was unable to recover the post or any of the comments.40 71 The plaintiff's own submissions state that there is a 30-day window from the date of deletion to recover a post via the platform's activity log function and acknowledges that, if there is no activity log found, it may not be restorable.41 72 The Kwan Affidavit annexing the instructions to recover the post was filed and served on the defendant on 21 August 2025.42 This is 53 days after the post was deleted on 29 June 2025, and 23 days after the expiry of the 30-day period to recover a deleted post, referred to in the plaintiff's submissions. There is no evidence before me to indicate that the defendant would be able to recover the deleted post. 73 Before the defendant deleted the post, he took screenshots of comments made by anonymous posters 238, 372 and 385.43 Copies of those screenshots were provided to the plaintiff's solicitor on 12 September 2025 together with a screenshot showing the identity of the author of the original post.44 74 The defendant has affirmed that he does not know and cannot recall the names of any of the other anonymous members of the Facebook Group that the plaintiff seeks information about.45 75 On the available evidence, whilst there are reasonable grounds for believing that the defendant had information or documents in his possession that may assist in ascertaining the description of the anonymous members, his evidence is that he is no longer able to access such information or documents. Would it be reasonable for the plaintiff to bring a proceeding in defamation against the anonymous members? 76 As outlined, although a prima facie case need not be shown, there must be some indication that the applicant has a cause of action and an order for discovery should not be made if the prospective action is merely speculative. 40 First Arachchilage Affidavit [9] - [10]. 41 Plaintiff's reply submissions [21]. 42 See affidavit of service of Khai Kwan sworn on 22 August 2025. 43 First Arachchilage Affidavit [7]. 44 Second Arachchilage Affidavit [3] - [5], 'GW-2'. 45 First Arachchilage Affidavit [8]. -- 19 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 20 77 In general terms, for the plaintiff to succeed in an action for defamation, he would need to establish that the relevant posts on the Facebook Group identified him or related to him and that the words used conveyed a defamatory imputation.46 The principles to be applied in determining the meaning of the matter published and whether it conveys a defamatory imputation are well-established. They were recently distilled by Tottle J in Reynolds v Higgins,47 which I refer to without repeating. 78 The context and medium in which the publication is made is an important consideration and the publication must be read as a whole.48 79 I do not set out in any detail or repeat the posts that the plaintiff claims are defamatory. I do not consider it is necessary to do so for the purpose of this application, and such would only serve to republish the alleged defamatory posts. I have considered each of the posts made by the anonymous users of the Facebook Group and the submissions made by the parties in respect of them. 80 I address each by reference to the number of the anonymous member in the order referred to in the plaintiff's amended minute of proposed orders. To the extent I have stated that it is arguable that a post may have a defamatory imputation, I do so applying the relatively low threshold required for the purpose of this application. Anonymous member 385 81 It is not immediately apparent from the words themselves, or the submissions made on behalf of the plaintiff, that the posts made by anonymous member 38549 are defamatory of the plaintiff or convey a defamatory imputation. 82 In any event, the defendant has provided the plaintiff screen shots of the posts showing the name of anonymous user 385 and deposed that he has no further documents or information about their identity. 46 See McIntosh v Peterson [No 2] [2024] WASC 428 (McIntosh [No 2]) [199], [203] - [208] (Quinlan CJ) and the authorities referred to. 47 Reynolds v Higgins [2025] WASC 345 [699] - [701] (Tottle J) and the authorities referred to. 48 McIntosh [No 2] [206]; Reynolds v Higgins [700(e)] - [700(f)] and the authorities referred to. 49 First Kwan Affidavit, 'KHK-2', pages 14, 16 - 17, 24; Jalagge Affidavit, 'Rosh-1', pages 8, 10, 11, 18. Translation provided in Liyanage Affidavit, 'B', pages 21 - 22. -- 20 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 21 Anonymous member 661 83 It is not apparent that the post made by anonymous member 66150 has a defamatory imputation. Anonymous member 372 84 The plaintiff submits that the post made by anonymous member 37251 is the most serious of the posts. I accept that for the purpose of this application, it is arguable that the post may convey a defamatory imputation. 85 However, the defendant has provided the plaintiff a screen shot showing the name of anonymous member 372 and deposed that he has no further documents or information about their identity. Anonymous member 449 86 It is not apparent that the post made by anonymous member 44952 has a defamatory imputation. Anonymous member 754 87 I accept, for the purpose of this application, that it is arguable that the post made by anonymous member 75453 may convey a defamatory imputation. Anonymous member 727 88 The post made by anonymous member 72754 is vague and it is not immediately apparent that the comments are directed to the plaintiff himself. However, I accept for the purpose of this application that it is arguable that the post may convey a defamatory imputation. Anonymous member 567 89 It is not apparent that the post made by anonymous member 56755 has a defamatory imputation. 50 Jalagge Affidavit, 'Rosh-1', page 8; Kwan Affidavit, 'KHK-2', page 14. Translation provided in Liyanage Affidavit, 'B', page 21. 51 Jalagge Affidavit, 'Rosh-1', page 11; Kwan Affidavit, 'KHK-2', page 17. 52 Jalagge Affidavit, 'Rosh-1', page 12; Kwan Affidavit, 'KHK-2', page 18. Translation provided in Liyanage Affidavit, 'B', page 21. 53 Jalagge Affidavit, 'Rosh-1', page 12; Kwan Affidavit, 'KHK-2', page 18. Translation provided in Liyanage Affidavit, 'B', page 21. 54 Jalagge Affidavit, 'Rosh-1', page 13; Kwan Affidavit, 'KHK-2', page 19. 55 Jalagge Affidavit, 'Rosh-1', page 14; Kwan Affidavit, 'KHK-2', page 20. Translation provided in Liyanage Affidavit, 'B', page 22. -- 21 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 22 Anonymous member 203 90 The post by anonymous member 203 at page 1456 appears to relate to the author of the original post on the Facebook Group, as opposed to the plaintiff, and does not appear to be defamatory of the plaintiff. Anonymous member 859 91 There are two posts by anonymous member 859.57 It is not immediately apparent what, if any, defamatory meaning is conveyed by the first of those. However, for the purpose of this application, I accept that it is arguable that the second post may convey a defamatory imputation. Anonymous member 993 92 It is not immediately apparent but I accept, for the purpose of this application, that it is arguable the post by anonymous member 99358 may convey a defamatory imputation. Anonymous member 361 93 It is not apparent that the post made by anonymous member 36159 has a defamatory imputation. Would it be reasonable for the plaintiff to bring a proceeding in defamation against the anonymous members? 94 On the evidence before the court, I am not satisfied that it would be reasonable for the applicant to bring a proceeding against all of the anonymous members referred to in the plaintiff's amended minute of proposed orders. 95 As outlined, for the purpose of this application, the posts I consider may arguably convey a defamatory imputation are those made by anonymous members 372, 727, 754, 993 and the second post made by anonymous member 859. 56 Jalagge Affidavit, 'Rosh-1', page 14; Kwan Affidavit, 'KHK-2', page 20. Translation provided in Liyanage Affidavit, 'B', page 22. 57 Jalagge Affidavit, 'Rosh-1', pages 16 - 17; Kwan Affidavit, 'KHK-2', pages 22 - 23. Translation provided in Liyanage Affidavit, 'B', page 22. 58 Jalagge Affidavit, 'Rosh-1', pages 16 - 17; Kwan Affidavit, 'KHK-2', pages 22 - 23. Translation provided in Liyanage Affidavit, 'B', page 22. 59 Jalagge Affidavit, 'Rosh-1', page 17; Kwan Affidavit, 'KHK-2', page 23. Translation provided in Liyanage Affidavit, 'B', page 22. -- 22 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 23 96 However, for the reasons given, the plaintiff has not satisfied all of the conditions required to enliven the court's power to make the orders sought for pre-action discovery. Would making the orders sought assist the plaintiff in ascertaining a sufficient description of the anonymous members? 97 For completeness, I have considered the utility of making the orders sought, had I been satisfied the court's power to make them had been enlivened. 98 The defendant has deposed that he has provided the plaintiff's solicitors with all of the documents he has or is able to obtain about the identity of the anonymous members. The documents provided include screenshots showing the names of anonymous members 238, 372 and 385. The plaintiff no longer seeks discovery in relation to anonymous member 238. 99 In the circumstances, I accept the defendant's submissions that there would be no utility in making the orders sought by the plaintiff. Such would not assist the plaintiff in ascertaining a sufficient description of the anonymous members and would only serve to further increase costs. Conclusion and orders 100 For these reasons, the plaintiff's application should be, and is, dismissed. 101 Subject to hearing from the parties, there does not appear to be any reason why the plaintiff should not be ordered to pay the defendant's costs of the application, to be taxed if not agreed. 102 I will make orders to the following effect and hear from the parties in respect of the orders to be made in relation to the costs of the application, if they are not agreed: 1. The plaintiff's application for pre-action discovery is dismissed. 2. Within seven (7) days of the date of these orders, the parties are to confer in relation to the costs of the application and: (a) if agreement is reached, file a memorandum of consent orders; -- 23 of 24 -- [2026] WASC 202 MASTER RUSSELL Page 24 (b) if agreement is not reached, each party is to file a minute of their proposed orders in relation to the costs of the application. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SC Associate to Master Russell 28 MAY 2026 -- 24 of 24 --