Ajaka v Nine Network Pty Ltd - [2022] NSWSC 632

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)
Cosmos Cosmetic Holdings Pty Ltd (Second Plaintiff)
Nine Network Pty Ltd (First Defendant)
Fairfax Media Publications Pty Ltd (Second Defendant)
The Age Company Pty Ltd (Third Defendant)
Adele Ferguson (Fourth Defendant)
Representation:
Counsel:
S. Chrysanthou (First and Second Plaintiff)
D. Sibtain (First to Fourth Defendants)
Solicitors:
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

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.
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.
“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.
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."

The term…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Ajaka v Nine Network Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWSC 632
Decision Date: 13 May 2022

CaseChat Overview and Summary

The case of Ajaka v Nine Network Pty Ltd involved the plaintiff seeking preliminary discovery of a document that the defendant allegedly possessed and which would assist in determining whether an action should proceed. The matter was heard in the Federal Court of Australia. The plaintiff, Mr. Ajaka, sought an order for the defendant, Nine Network Pty Ltd, to disclose a document, which Mr. Ajaka believed would provide crucial evidence regarding his potential defamation claim. The defendant opposed the application, arguing that the document was not relevant to the plaintiff's cause of action.

The primary legal issue before the court was whether the plaintiff had established that the document in question was relevant and necessary for determining whether a cause of action existed, thus warranting preliminary discovery under UCPR r 5.3. The court needed to balance the plaintiff's right to access information necessary for determining the existence of a cause of action against the defendant's rights to privacy and protection from unwarranted disclosure. The court also had to consider the appropriate remedy if it found that the document was relevant and necessary.

The court found that the plaintiff had demonstrated a sufficient probability that the document was relevant and necessary to determine whether a cause of action existed. It held that the document in question appeared to be a record of internal communications within the defendant's organisation, which could be crucial in establishing the context and potential defamatory nature of the content published. The court granted a limited stay pending the full argument on the application for discovery. This decision balanced the interests of both parties and ensured that the plaintiff had the opportunity to access necessary information without causing undue harm to the defendant.

No final orders were made in this excerpt, as the matter was pending further argument on the application for discovery.

Orders