Ajaka v Nine Network Pty Ltd (No 2) - [2022] NSWSC 765

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Ajaka v Nine Network Pty Ltd (No 2) [2022] NSWSC 765
Hearing dates: 8 June 2022
Date of orders: 9 June 2022
Decision date: 09 June 2022
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) Summons dismissed;
(2) The applicants on the Summons shall pay the costs of the respondents of and incidental to the Summons.

Catchwords:
CIVIL PROCEDURE – Preliminary Discovery – Applicants previously commenced proceedings against proposed defendants – no evidence of alteration of view – jurisdiction of the Court where no proceedings – jurisdiction and power of the Court to order discovery or production when proceedings on foot – applicants had already decided to sue – UCPR rule 5.3 not applicable – summons dismissed.

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 8, 9, 14, 16
Uniform Civil Procedure Rules 2005 (NSW), r 1.4, 5.3, 6.2, 21.2, 21.5, 21.10, 21.11, Part 33, 33.2
Supreme Court Act 1970 (NSW), ss 22, 23

Cases Cited:
Ajaka v Nine Network Pty Ltd [2022] NSWSC 632
Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd [2001] VSCA 167
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69
Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69
KBRV Resort Operations Pty Ltd v Chilcott (2001) 51 NSWLR 516; [2001] NSWCA 116
Morton v Nylex Ltd [2007] NSWSC 562
Nine Network Australia Pty Ltd v Ajaka [2022] NSWCA 91
Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133; [1973] 2 All ER 943
O'Connor v O'Connor [2018] NSWCA 214
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19
R v Jones; Hilli(No 2) [2010] NSWCCA 195
R v Graham; ex parte Moore (1977) 138 CLR 165; [1977] HCA 20

Category: Procedural rulings
Parties:
Dr Joseph Ajaka (First Applicant)
Cosmos Cosmetic Holdings Pty Ltd (Second Applicant)
Nine Network Pty Ltd (First Respondent)
Fairfax Media Publications Pty Ltd (Second Respondent)
The Age Company Pty Ltd (Third Respondent)
Adele Ferguson (Fourth Respondent)
Representation:
Counsel:
M J Collins QC with D Sibtain and S Mukerjea (Applicants)
K Smark SC with C P O’Neill (Respondents)
Solicitors:
Company (Giles) (Applicants)
Thomson Geer (Respondents)

File Number(s): 2022/00168581

Judgment

HIS HONOUR: Charles Dickens, through the character Mr Bumble in Oliver Twist, remarked that "the law is an ass – an idiot". While I am not an admirer of the style of most of Dickens' works (as a result of the original publication of them in serial form, which infects the novels) I regret that Charles Dickens has long been deceased. Otherwise, the controversy now before the Court could well make the basis of a sequel to Bleak House.
The Court is requested, once more, to grant to the applicants, Dr Joseph Ajaka and Cosmos Cosmetic Holdings Pty Ltd (hereinafter “the Applicants”), preliminary discovery of a proposed broadcast (hereinafter “the Programme”) by the…

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.

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Details

Case: [2022] NSWSC 765
Decision Date: 09 June 2022

CaseChat Overview and Summary

The matter before the court involved two parties, Ajaka and Nine Network Pty Ltd. Ajaka had previously initiated proceedings against Nine Network but had not yet formally commenced a lawsuit. In this instance, Ajaka sought an order for preliminary discovery from Nine Network, which the latter opposed. The case was heard in the Supreme Court of New South Wales, which had to determine the appropriate legal issues surrounding the application for discovery.

The primary legal issue before the court was whether it had the jurisdiction and power to order discovery or production when proceedings were not formally on foot. The court needed to consider whether the situation fell under the scope of UCPR rule 5.3, which deals with discovery in cases where proceedings have been commenced. Another consideration was whether the applicants had already decided to sue the defendants, and if so, whether this influenced the court's jurisdiction.

The court found that since Ajaka had not formally commenced proceedings, UCPR rule 5.3 did not apply. The court also held that there was no evidence that Ajaka had altered their view about suing Nine Network, meaning that the decision to seek preliminary discovery was made while the formal proceedings were still pending. The court concluded that it lacked the jurisdiction to make an order for discovery or production in these circumstances, as no proceedings were formally on foot. Consequently, the summons was dismissed.

The final orders of the court were that the summons be dismissed with no orders as to costs. The court determined that it did not have the jurisdiction to make an order for discovery or production when no proceedings were formally on foot, and therefore the application was unsuccessful.

Orders