Nine Network Australia Pty Ltd v Ajaka

THE COURT: On the afternoon of Friday 13 May 2022, proceedings were filed in this Court by Dr Joseph Ajaka and Cosmos Cosmetic Holdings Pty Ltd (Cosmos), naming as defendants the following: Nine Network Australia Pty Ltd, Fairfax Media Publications Pty Ltd, The Age Company Pty Ltd and Ms Adele Ferguson, a well-known journalist associated with those media companies.

The proceedings sought ex parte interim relief, preliminary discovery, interlocutory relief and final relief. The interim, interlocutory and final relief all sought the restraint of anticipated publications which the plaintiffs expected would carry defamatory imputations and false representations about them amounting to injurious falsehood.

The proceedings were listed before Rothman J (the primary judge) and came on before him late in the afternoon on which they were filed. The defendants were represented by Mr Sibtain but on virtually no notice. A number of orders were sought from his Honour and those orders were ultimately made after some argument late in the afternoon. The primary judge subsequently published brief reasons for the making of those orders and they were formally entered on 20 May 2022: Ajaka v Nine Network Pty Ltd [2022] NSWSC 632.

Those orders included order 2, which was as follows:

By order 3 of the orders made on the afternoon of 13 May, his Honour also ordered that:

Ancillary or auxiliary to the order for preliminary discovery pursuant to r 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the plaintiffs sought and obtained from his Honour interim injunctive relief by order 1, which was as follows:

It was made clear in argument before us that that interim relief was for the purposes only of allowing the plaintiffs, or their legal representatives, to inspect whatever documents may have been produced by way of preliminary discovery pursuant to orders 2 and 3. In other words, the interim relief ordered by the primary judge was wholly tied to and predicated upon the grant of preliminary discovery.

A number of other procedural orders were made consequent upon orders 2 and 3 (the preliminary discovery orders) the detail of which it is not necessary to reproduce.

The orders made by the primary judge were stayed but on the condition, as the Court understood it, that matters would be held in abeyance, that is to say, preliminary discovery would not take place and the program and the articles would not be published until such time as the defendants, who seek leave to appeal from the decision the primary judge, had an opportunity to agitate their arguments on appeal in this Court. That application for leave came on for hearing before the bench on the morning of 8 June 2022.

The terms of UCPR r 5.3, pursuant to which the preliminary discovery orders were made, are as follows:

Importantly, r 5.3 refers, in no less than four places, to orders being made against a person referred to as "the prospective defendant". Rule 5.3(1)(a) contemplates that no proceedings for substantive relief will have been commenced prior to the making of orders for preliminary discovery because it is predicated upon an insufficiency of “information to decide whether or not to commence proceedings against the prospective defendant”. Rule 5.3(4) is also a powerful indication that preliminary discovery pursuant to r 5.3 is only available against a person who is not already a party to proceedings brought by the applicant for preliminary discovery.

This straightforward textual analysis of r 5.3 resulting in the conclusion that the rule only permits preliminary discovery against a prospective defendant and not against existing parties to litigation is supported by authority, including Brydon v Australian Rail Track Corp Ltd [2014] NSWSC 1560 at [12]-[13] and [26]. In that case, Campbell J held that orders for preliminary discovery pursuant to rr 5.2 and 5.3 were not available to a plaintiff who had already filed, but not served, a statement of claim against the defendant; see also Wang v Cai [2021] NSWSC 1162 at [234] where it was “noted that preliminary discovery is not available where the applicant has already decided to bring the claim”, citing Morton v Nylex Ltd [2007] NSWSC 562 at [33]. The position is a fortiori where proceedings have already been commenced, such as in the present case. See also Pharmacy Guild of Australia v Ramsay Health Care Ltd [2019] NSWSC 1045 at [254].

When the application for leave to appeal was called on for hearing, the Court inquired of senior counsel for the respondents, Mr Smark SC, whether he could point to any jurisdiction (in the sense of authority or power) possessed by this Court to make an order for preliminary discovery against a person who was already a defendant in proceedings brought by the applicant for preliminary discovery. Ultimately, Mr Smark was constrained to concede that he could point to no such power, jurisdiction or authority in r 5.3 or any other rule of the Supreme Court which authorised an order for preliminary discovery against a party or parties who were already relevantly defendants to proceedings.

That concession was, in the opinion of the Court, one which was correctly and candidly made. It follows, inevitably, from that proper concession that the orders made by the primary judge on the afternoon of 13 May 2022 were not sustained by any jurisdiction in the Court. That is to say, there was no power to make them. Those orders must, therefore, be set aside.

At the conclusion of the hearing on 8 June 2022, the Court made the following orders:

Brief oral reasons were given at the time for the making of those orders. These are the amplified reasons for those orders.