Ajaka v Nine Network Pty Ltd
[2022] NSWSC 632
•13 May 2022
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Ajaka v Nine Network Pty Ltd [2022] NSWSC 632 Hearing dates: 13 May 2022 Date of orders: 20 May 2022 Decision date: 13 May 2022 Jurisdiction: Common Law Before: Rothman J Decision: Parties to provide minute of orders made.
Catchwords: CIVIL PROCEDURE – preliminary discovery – possession of a document that would assist plaintiff in determining whether they have an action – UCPR r 5.3 – limited stay pending full argument.
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), s 10
Uniform Civil Procedure Rules 2005 (NSW), r 5.3
Supreme Court Act1970 (NSW), ss 22, 66
Cases Cited: Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19
Rinehart v Nine Entertainment Co Holdings Ltd [2015] NSWSC 239
Category: Procedural rulings Parties: Dr Joseph Ajaka (First Plaintiff)
Nine Network Pty Ltd (First Defendant)
Cosmos Cosmetic Holdings Pty Ltd (Second Plaintiff)
Fairfax Media Publications Pty Ltd (Second Defendant)
The Age Company Pty Ltd (Third Defendant)
Adele Ferguson (Fourth Defendant)Representation: Counsel:
Solicitors:
S. Chrysanthou (First and Second Plaintiff)
D. Sibtain (First to Fourth Defendants)
Company (Giles) (First and Second Plaintiff)
Thomson Geer (First to Fourth Defendants)
File Number(s): 2022/140772 Publication restriction: Suppression orders have been issued which must be read in conjunction with this judgment
ex tempore Judgment
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HIS HONOUR: Before the Court is an application for certain orders relating to: (1) suppression of certain material arising out of these proceedings in and of themselves; (2) injunctive relief on an interim basis, and (3) preliminary discovery.
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I will deal with the preliminary discovery first. Preliminary discovery is dealt with in the Uniform Civil Procedure Rules 2005 (NSW) (hereinafter “the UCPR”) by rule 5.3. It is also a matter that is within the inherent jurisdiction of the Court, as it was given to the Court by Royal Charter on 14 April 1824 and was continued by s 22 of the Supreme Court Act1970 (NSW), and is, in part at least, described in s 23 of the Supreme Court Act, as all jurisdiction which may be necessary for the administration of justice in New South Wales.
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“Necessary” in that expression is, of course, necessary in the context of a grant of jurisdictional power to the Court, and I take the view that the construction of the term "necessary" does not mean "essential” but is to be given the construction given in the joint judgment in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435.
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Dealing, if I might, with the provisions of the Uniform Civil Procedure Rules, discovery of documents is permitted in circumstances where it appears to the Court that, and I am reading from UCPR r 5.3, sub rule (1), para (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."
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The term “such a claim for relief” is a reference back to para (a), which deals with, "a claim for relief from the Court against a person or persons". In this case, it is beyond doubt that the defendants, one or more of them, have in their possession a document that, "assists in determining whether or not the applicant is entitled to make such a claim for relief." The term “claim for relief” is defined by the UCPR by reference to the Civil Procedure Act 2005 (NSW) and is extremely broad and includes any justiciable matter or the determination of any question. As a consequence, I adopt the principles that were adumbrated by his Honour Garling J in Rinehart v Nine Entertainment [2015] NSWSC 239 at [56] – [64].
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The terms of the production will be that it be produced to the solicitor for the plaintiffs in circumstances where the only persons who see the publication are the solicitors and counsel that have been instructed in the proceedings; and, where the contents of the document are not to be disclosed to anyone other than possibly Dr Ajaka, and in that sense, only to the extent necessary to obtain instructions on the deliberate falsity of any issue associated with his conduct or with wilful blindness. That production is to be effected by 9.30am Saturday 14 May 2022, and it may be effected either by a provision of a USB, or some other electronic device, or by email, if that is appropriate or capable of being effected.
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The second aspect is the issue of the interim injunction. An interim injunction is sought under s 66 of the Supreme Court Act — or exercising the power that is prescribed in s 66 of the Supreme Court Act —which allows the Court, or grants the Court jurisdiction, to issue interlocutory injunctions for any apprehended injury.
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The difficulty in these proceedings is that there are principles associated with freedom of speech, and principles associated with the issuing of injunctions relating to the question of whether damages is an adequate remedy which affect the capacity of the Court to issue injunctions for defamatory conduct. Obviously, the Court has jurisdiction to do it, but as an exercise of discretion, the Court, and other courts, have turned their face against interlocutory injunctions in defamation proceedings.
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These proceedings, or these injunctions, rest, in part at least, on a claim for injurious falsehood, which is not said to arise by way of a subterfuge, and is not colourable. The material that is before the Court satisfies the Court that there is to be a publication in which the plaintiffs will be named, which publication will be critical of the cosmetic surgery industry in which the second plaintiff is the largest supplier of services.
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A series of questions was asked by the defendants on Wednesday 11 May 2022 for answer almost immediately. A responding letter was sent by the plaintiffs seeking an extension of time, which extension of time was granted. It is likely that the publication of the material that may give rise to the claim for relief will occur no later than Sunday evening.
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There are also articles that are associated with the publication of the television program. It is an inference that I draw, given the nature of the questions that are asked, that the publication will be at least critical of an employee of the corporate plaintiff when the employee was employed by it. The employee has since parted from employment — and that termination of employment is the subject of a deed of release between the plaintiffs, or binding the plaintiffs, and that employee — which has mutual non-disparagement clauses.
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As a consequence of what was thought to be the effect of those mutual non-disparagement clauses, the plaintiffs — in answer to one of the questions, or some of the questions, asked by the author of the television program — expressed that they were not at liberty to disclose certain information. I am ambivalent about whether that in and of itself would be a reason to suggest malice.
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It seems to me that the deed of release was one entered into freely by the plaintiffs, and they suffer the consequences, if there are any, of any difficulties associated with that deed of release, and certainly cannot blame the defendants for the consequences of that.
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Nevertheless, it is fair to say that if there is an injurious falsehood — that is, a malicious untruth, which includes an untruth that is made with reckless disregard, or wilful blindness to the truth of the matter — the damages to the plaintiff would be immeasurable, and probably irreversible, at least in part. The matter needs full exposition.
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The matter has come before the Court at 4.15pm on a Friday afternoon with a half hours’ notice to the defendants, or thereabouts, and a half hours’ notice to the Court. It seems to me that the orders for production will allow the plaintiffs to determine whether there is a claim for relief (and the Court to determine the issue of any injunction for other than the limited period that I intend to impose) by 12pm tomorrow, being 14 May 2022. As a consequence, I will grant interim injunctions that will conclude at 4pm tomorrow, or by further order of the Court, whichever occurs earlier.
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As for the suppression orders, I will make s 10 orders under the Court Suppression and Non-publication Orders Act 2010 (NSW), insofar as they deal with issues that are said to be aspects of these publications that are said to be defamatory. But, that matter will be, of course, like the others, revisited at the time when the full injunction is to be determined.
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Amendments
20 May 2022 - typographical error
20 May 2022 - Typographical error
20 May 2022 - Typographical error
Decision last updated: 20 May 2022
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