Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Nine Network Australia Pty Ltd v Ajaka [2022] NSWCA 91 Hearing dates: 08 June 2022 Date of orders: 08 June 2022 Decision date: 09 June 2022 Before: Bell CJ, Ward P, Simpson AJA Decision: 1. Grant leave to appeal. 2. Direct that the Applicants, now Appellants, file a notice of appeal in the form of the draft notice of appeal. 3. Appeal allowed. 4. Set aside orders 1 to 9 of Rothman J entered on 20 May 2022. 5. Dismiss paragraphs 14 to 20 of the Respondents' summons filed in the Common Law Division on 13 May 2022. 6. The Respondents to the appeal are to pay the Appellants' costs of and incidental to the application for leave to appeal, the appeal and the hearings before Rothman J on 13 May 2022 and 20 May 2022. Catchwords: CIVIL PROCEDURE – preliminary discovery – to identify potential cause of action – application for preliminary discovery pursuant to r 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) – whether preliminary discovery is available against a person who is already a defendant in proceedings brought by the applicant for preliminary discovery Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 5.2, 5.3 Cases Cited: Brydon v Australian Rail Track Corp Ltd [2014] NSWSC 1560 Morton v Nylex Ltd [2007] NSWSC 562 Pharmacy Guild of Australia v Ramsay Health Care Ltd [2019] NSWSC 1045 Wang v Cai [2021] NSWSC 1162 Category: Principal judgment Parties: Nine Network Australia Pty Ltd (First Applicant) Fairfax Media Publications Pty Ltd (Second Applicant) The Age Company Pty Ltd (Third Applicant) Adele Ferguson (Fourth Applicant) Joseph Ajaka (First Respondent) Cosmos Cosmetic Holdings Pty Ltd (Second Respondent) Representation: Counsel: M J Collins QC with D Sibtain and S Mukerjea (Applicants) K Smark SC with C P O'Neill (Respondents) Solicitors: Thomson Geer (Applicants) Company Giles (Respondents) File Number(s): 2022/149639 Publication restriction: N/A Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2022] NSWSC 632 Date of Decision: 13 May 2022 Before: Rothman J File Number(s): 2022/140772 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] On the afternoon of 13 May 2022, proceedings were commenced in the New South Wales Supreme Court by Dr Joseph Ajaka and Cosmos Cosmetic Holdings Pty Ltd (the Respondents), 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 Applicants). The proceedings sought ex parte interim relief, preliminary discovery, interlocutory relief and final relief. The parts of the summons dealing with interim, interlocutory and final relief all sought the restraint of anticipated publications which the Respondents expected would carry defamatory imputations and false representations about them. Those publications included a forthcoming 60 Minutes program concerning the cosmetic surgery industry (the program), any newspaper articles associated with the program, and a promotional segment for the program, which had already been broadcast. The proceedings came on before the primary judge late in the afternoon on which they were filed. The Applicants were represented but on virtually no notice. After some argument, the primary judge delivered judgment ex tempore. He made orders pursuant to r 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), requiring the Applicants to provide draft copies of the program and any associated newspaper articles to the Respondents' lawyers. He also granted an interim injunction temporarily restraining the Applicants from publishing the program and the associated articles pending provision and inspection of the material to be discovered. As the Applicants stated that they intended immediately to seek leave to appeal from the decision of the primary judge, the orders were stayed pending the determination of the appeal, on the condition that the Applicants undertake not to publish the program or the associated articles. That is to say, preliminary discovery would not take place, and the program and the articles would not be published, until the application for leave to appeal was resolved. The Court (Bell CJ, Ward P and Simpson AJA) held, granting leave to appeal and allowing the appeal: 1. Preliminary discovery pursuant to r 5.3 of the UCPR is not available against a person who is already party to proceedings brought by the applicant for preliminary discovery: [11]-[12]. Brydon v Australian Rail Track Corp Ltd [2014] NSWSC 1560; Wang v Cai [2021] NSWSC 1162; Morton v Nylex Ltd [2007] NSWSC 562; Pharmacy Guild of Australia v Ramsay Health Care Ltd [2019] NSWSC 1045, referred to. 1. The preliminary discovery and associated orders made at first instance were therefore not sustained by any jurisdiction in the Court, in the sense that there was no power to make them: [14]. Judgment 1. 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. 2. 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. 3. 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. 4. Those orders included order 2, which was as follows: "Pursuant to rule 5.3 of the Uniform Civil Procedure Rules 2005, the defendants must discover to the plaintiffs' counsel and solicitors forthwith, the latest draft of the proposed 60 Minutes segment the subject of the Promo." The "Promo" was a short television promotion for a forthcoming episode or feature on the 60 Minutes program, which is aired on the Nine Network. The Promo did not refer to either Dr Ajaka or Cosmos although it did refer to the industry in which he worked and Ms Ferguson had sent Dr Ajaka a series of questions about his involvement in the industry on 11 May 2022. 1. By order 3 of the orders made on the afternoon of 13 May, his Honour also ordered that: "Pursuant to rule 5.3 of the Uniform Civil Procedure Rules 2005, the defendants must discover forthwith to the plaintiffs' counsel and solicitors any draft of any associated articles proposed to be published, referred to in the Promo." That order reflected the fact that the defendants include publishers of print media as well as Nine Network Australia Pty Ltd (a presenter of television programs). 1. 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: "The Court orders that the defendants, and each of them, are restrained, until 4.00pm on 14 May 2022, or until further order, whichever is the earlier, from broadcasting the proposed segment and/or from publishing the proposed associated articles or any other publication on the subject to which the Promo relates insofar as it relates to the plaintiffs." 1. 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. 2. 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. 3. 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. 4. The terms of UCPR r 5.3, pursuant to which the preliminary discovery orders were made, are as follows: "5.3 Discovery of documents from prospective defendant (1) If it appears to the court that-- (a) the applicant may be entitled to make a claim for relief from the court against a person ("the prospective defendant" ) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and (b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and (c) inspection of such a document would assist the applicant to make the decision concerned, the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief. (2) An order under this rule with respect to any document held by a corporation may be addressed to any officer or former officer of the corporation. (3) Unless the court orders otherwise, an application for an order under this rule-- (a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and (b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed. (4) This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to decide whether or not to claim or cross-claim against a person who is not a party to the proceedings." 1. 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. 2. 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]. 3. 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. 4. 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. 5. At the conclusion of the hearing on 8 June 2022, the Court made the following orders: 1. Grant leave to appeal. 2. Direct that the Applicants, now Appellants, file a notice of appeal in the form of the draft notice of appeal. 3. Appeal allowed. 4. Set aside orders 1 to 9 of Rothman J entered on 20 May 2022. 5. Dismiss paragraphs 14 to 20 of the Respondents' summons filed in the Common Law Division on 13 May 2022. 6. The Respondents to the appeal are to pay the Appellants' costs of and incidental to the application for leave to appeal, the appeal and the hearings before Rothman J on 13 May 2022 and 20 May 2022. 1. Brief oral reasons were given at the time for the making of those orders. These are the amplified reasons for those orders. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 June 2022