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

1. 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.

2. 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 respondents to the application, Nine Network Australia Pty Ltd, Fairfax Media Publications Pty Ltd, the Age Company Pty Ltd and Adele Ferguson, the Programme’s presenter.

3. That which is sought is the broadcast of a proposed 60 Minutes Programme, or the latest draft thereof, and any draft articles in the publications of the respondents associated with the broadcast and referred to in the "Promo" (hereinafter “the Articles”). The proposed 60 Minutes segment, and the Articles, are sought pursuant to r 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) (hereinafter "UCPR") . The application is accompanied by a prayer that the documents produced may be viewed only by the applicant, the director of the second applicant, and the lawyers for the applicants; and that such documents may not be copied. Presumably, it also requires that the documents not be published or the contents thereof disclosed. The applicants seek costs.

4. At the outset, the Court notes that it is not abundantly clear why a director of the second applicant is required to view either the Programme or the articles. That aspect will be discussed later in these reasons.

5. Initially, on 13 May 2022, the applicants before the Court today, applied by Summons [1] for interim relief against the respondents to this application. That included preliminary discovery pursuant to rule 5.3 of UCPR; a quia timet interlocutory injunction; and final injunctions. The Court, as presently constituted, dealt with the earlier summons on that Friday 13 May 2022, issued orders and ex tempore reasons, which have now been published. [2]

   1. Exhibit 2 for the Court on this application.

   2. Ajaka v Nine Network Pty Ltd [2022] NSWSC 632.

6. The orders required production of the Programme and the Articles by 9:30 AM Saturday 14 May 2022, and the hearing on any injunction was to be held at noon on Saturday 14 May 2022. The timing of the hearing was expressly fixed on an urgent basis so as to entitle the respondents to broadcast the Programme at its intended time and on its intended date, which was in the evening of Sunday 15 May 2022.

7. As a result of the order for discovery of the Programme and/or the Articles, the respondents indicated that they sought to appeal that order. Simultaneously, the respondents sought a stay of the order, as a consequence of which they offered, without invitation, an undertaking not to broadcast the Programme, or publish any of the Articles until such time as the appeal had been before the Court. The reference to the absence of an invitation is not intended as a criticism. In the ordinary course, it is usual that, where a stay of an order enjoining or commanding conduct was to be sought, there be an undertaking that the conduct would not be performed or engaged in, until the appeal could be heard.

8. The orders issued by the Court on 13 May 2022 were not entered until 20 May 2022. There were issues between the parties as to the content of the orders, which, when the issues became known to the Court, were listed and resolved.

9. On 8 June 2022, the appeal came before the Court of Appeal. As stated, notice of an Intention to appeal was given orally to the Court on 13 May 2022. At the time that these reasons are drafted, the reasons for judgment of the Court of Appeal had not been published.

10. The parties are agreed that a File Note, [3] provided to the Court in the course of the hearing on 8 June 2022 accurately reflects the ex tempore oral judgment of the Court of Appeal, delivered by the Chief Justice. Unsurprisingly, given the industry in which the respondents operate, the file note appears to be an accurate reflection of the comments. [4] I am not prepared, given the unusual nature of such a file note, to assume that it is a verbatim reflection of the judgment issued. I also acknowledge that, given the judgment was issued, ex tempore, the Court of Appeal has the capacity to amend any infelicitous statement or amend the reasons in a way that reflects better the reasons for the orders made.

    3. File Note, Marked For Identification 1 (MFI-1) on the application.

    4. Noting that court reporters were originally journalists and, in Australia, remained journalists until the last quarter of the 20th Century.

11. Superior courts alter reasons delivered ex tempore by correcting any infelicitous or injudicious use of language, or some grammatical expression. Such an alteration does not alter the reasons for judgment. Courts, however, are not entitled to alter the wording in a manner inconsistent with the reasons originally issued, but, where there has been an obvious mistake of fact, that may be corrected because it does not alter the reasons for the orders made. [5]

    5. Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd [2001] VSCA 167 at [38]-[40] and the cases cited therein; R v Jones; Hilli (No 2) [2010] NSWCCA 195.

12. According to the File Note, which the parties’ representatives say reflects the reasons for the judgment of the Court of Appeal, the pre-penultimate paragraph has the Court saying, in part:

“the Court enquired of Mr Smark SC for respondents whether he could point to any jurisdiction 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. Ultimately, he was constrained to concede that he could point to no such power, jurisdiction or authority in R 5 .3 or in any other rule of the Supreme Court which authorised an order of preliminary discovery against parties who will already defendants to proceedings. That concession was, in the opinion of the Court, one which was correctly and candidly made.

It follows inevitably from that concession that the orders made by Rothman J on 13 May 2022 were not sustained by any jurisdiction in the Court. The orders must therefore be set aside." [6]

6. MFI-1.

13. As earlier stated, I am not prepared to accept that the foregoing is a verbatim account of the reasons for judgment and certainly not the final or authorised version. In particular, knowing the style of the learned Chief Justice, and given the last sentence of the pre-penultimate paragraph, it is likely that the first sentence of the penultimate paragraph, which referred to a concession, repeated a reference to the propriety of the concession.

14. Nevertheless, I accept that the File Note records the substance of the oral judgment issued. Whatever be the reasons for judgment and their precise content, the Court of Appeal, today, granted leave to appeal; allowed the appeal; set aside the orders 1 to 9, entered on 20 May 2022; dismissed paragraphs 14 to 20 of the Summons; and, ordered the respondent to the appeal to pay the costs of the appellant on the appeal and in the proceedings leading up to and concluding with the orders entered on 20 May 2022.

15. At the commencement of the hearing before the Court as presently constituted, on the morning of 8 June 2022, the plaintiffs in the original proceedings sought leave to discontinue those proceedings. Apparently, this was foreshadowed to the Court of Appeal, although the Court, as presently constituted, was not informed of such at the time. It should be noted that the respondents to this application (being the defendants in the previous proceedings) neither opposed nor consented to the grant of leave to discontinue.

16. The Court noted that leave could be granted only on the filing of a Notice of Discontinuance; waived the rules requiring a Notice of Discontinuance to be in writing and/or filed; and granted leave to withdraw instanter. Pursuant to UCPR r 36.4, as a consequence of the waiving of the conditions precedent to the grant of leave, the effect of the grant of leave was to discontinue the proceedings immediately.

17. Before the Court of Appeal, the applicants in these proceedings, through their counsel, also apparently foreshadowed that, once they discontinued the proceedings they would apply (as applicants that were not parties to relevantly commenced proceedings) to the Court under UCPR r 5.3 for preliminary discovery.

18. Again, neither counsel informed the Court, as presently constituted, that the intention of the applicants (in their capacity as plaintiffs in the previous proceedings) in discontinuing the proceedings was then to apply to the Court under UCPR r 5.3 for the same or similar orders granted on 13 May 2022. Frankly, it is astounding that, at least, counsel for the respondents would not inform the Court of that foreshadowed conduct, as it informs the exercise of the Court’s discretion to grant leave to discontinue and whether such discontinuance should or should not be subject to terms. Further, it is disappointing that counsel for the applicants did not inform the Court of that intention.

19. Nevertheless, the Court, uninformed of any intention to re-apply under UCPR r 5.3, granted leave to discontinue the previous proceedings, without condition. Once that discontinuance was effected, the applicants applied under UCPR r 5.3 for preliminary discovery of the Programme and the Articles. It falls to the Court, once more, to determine its attitude to the application and to preliminary discovery. On this application, however, the applicants point to a changed circumstance or a number of changed circumstances.

20. The parties have tendered evidence before the Court that was not before the Court in the original proceedings. There is a further Affidavit of Rebekah Giles of 3 June 2022, of which paragraphs 1 to 5, inclusive, have been read and relied upon by the applicants. There is also a further Affidavit of John-Paul Cashen of 24 May 2022, relied upon by the respondents.

21. In the previous proceedings, an Affidavit of Ms Giles of 13 May 2022, and an Affidavit of Mr Cashen of 13 May 2022 was before the Court, and each Affidavit is read and relied upon in these proceedings. No objection is taken by either party to any of the affidavits. Further, there is no cross-examination on the affidavits.

Jurisdiction

22. I have already recited the pre-penultimate and penultimate paragraph of MFI 1, the File Note, reflecting the reasons for judgment of the Court of Appeal. At the urging of counsel for the applicants in the Appeal, or by virtue of that which was put to the Court of Appeal, the Court of Appeal determined that the orders made on 13 May 2022 "were not sustained by any jurisdiction in the Court".

23. The ex tempore reasons for judgment of the Court, in the initial proceedings, issued on 13 May 2022, contain the following comment:

“[2]   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 Act 1970 (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.” [7]

7. Ajaka v Nine Network Pty Ltd [2022] NSWSC 632 at [2].

24. The provisions of the UCPR are incapable of granting the Court jurisdiction that is not otherwise possessed. The rules are made by the Uniform Rules Committee, established under s 8 of the Civil Procedure Act 2005 (NSW), which, pursuant to s 9 of the Civil Procedure Act, is empowered to make rules, not inconsistent with the Civil Procedure Act, with respect to any matter that is required or permitted to be prescribed or that is necessary or convenient to be prescribed by rules for carrying out or giving effect to the Act.

25. By operation of s 14 of the Civil Procedure Act, the Court, or a judge thereof (in this respect, including judges of the District Court), may dispense with any requirement of the rules of court. By s 16 of the Civil Procedure Act, the Court may give directions in circumstances not covered by the rules in relation to any aspect of practice or procedure for which the rules of the Court or Practice Notes do not provide. The proposition that UCPR r 5.3 is a grant of jurisdiction on the Court, not otherwise possessed, would put the rules at a level higher than the source of them.

26. The extract, above, from the earlier judgment refers to the jurisdiction by virtue of the Royal Charter, the continuation of the Court under s 22 of the Supreme Court Act 1970 (NSW), and the provisions of s 23 of the Supreme Court Act, which grants to the Court "all jurisdiction which may be necessary for the administration of justice" in the State. Indeed, the subsequent reference to the meaning of the term "necessary", by citing Pelechowski,[8] was a reference to the term in s 23 of the Supreme Court Act. In Pelechowski, the High Court referred to the term "necessary" in the following way:

“[51]   The term "necessary" in such a setting as this is to be understood in the sense given it by Pollock CB in The Attorney-General v Walker, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term ‘necessary’ does not have the meaning of ‘essential’; rather it is to be ‘subjected to the touchstone of reasonableness’ (citations omitted).” [9]

8. Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19.

9. Ibid at [51].

27. The foregoing is not intended as a criticism of the Court of Appeal. There are times when the adversarial nature of proceedings creates its own difficulties. In the proceedings before the Court of Appeal, it seems, no one suggested that there was a power or jurisdiction to order production of the Programme or the Articles, except pursuant to the terms of UCPR r 5.3.

28. The difficulty with such a narrow understanding of the Court’s jurisdiction or power is manifest. First, the UCPR, by operation of UCPR r 1.4, does not affect the right of any person to commence proceedings for discovery. Further, preliminary discovery was always treated differently from discovery against other non-parties which is, ordinarily, unavailable. [10]

    10. Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133; [1973] 2 All ER 943.

29. The point of preliminary discovery, and its purpose, is to establish the identity of a wrongdoer (or probable wrongdoer), or the existence of the circumstances that give rise to the cause of action. The process originated in Chancery; the powers of the Courts of Chancery being granted to the New South Wales Supreme Court in 1824. Initially. the Equity Courts would, on application to them for discovery, stay the common law proceedings until discovery had occurred, unless the common law proceedings were otherwise adjourned or stayed.

30. The operation of UCPR r 1.4 is the reason that — notwithstanding that discovery, including preliminary discovery, is commenced by summons — the provisions of UCPR r 6.2 do not involve the circuitous proposition that, by filing the summons for preliminary discovery, proceedings have commenced.

31. Notwithstanding the foregoing, as already stated, I accept that the terms of MFI 1 are, to the extent necessary, the substance of the reasons for judgment of the Court of Appeal.

32. As a consequence, the Court, as presently constituted, is bound by the statement of the Court of Appeal that UCPR r 5.3 is the limit of the Court's jurisdiction or power to grant preliminary discovery, discovery of the kind ordered by the Court on 13 May 2022. If UCPR r 5.3 is a conferral of jurisdiction, it is ultra vires. I enquired of counsel appearing in this application as to whether either of them relied upon the invalidity of UCPR r 5.3. Understandably, neither sought to rely on any invalidity in the rule.

33. Contrary to the view expressed by counsel for the applicants, when appearing in the Court of Appeal this morning, the powers of the Court (and the rules in the UCPR relating to same) allowing the Court to order the production of a document by a party to proceedings are abundant. First, there is a power to order a party to proceedings to give discovery; [11] then produce forthwith the documents on the list in short time; [12] and to order production to the Court.

    11. UCPR r 21.2.

    12. UCPR r 21.5.

34. Secondly, the Court could order that, pursuant to the provisions of UCPR 21.10 and 21.11, the reasonable time for the production of anything on a Notice to Produce was the 12 hours or so allowed in the orders made on 13 May 2022. Lastly, and without dealing with the capacity to issue interrogatories (with which, with respect, any practitioner in defamation ought to be aware) the Court has the abundant powers regulated in the Rules by UCPR Part 33 to issue, inter alia, a subpoena to produce the Programme and Articles in the time required, under UCPR r 33.2, assuming for present purposes, that the time was a reasonable one.

27. The difficulty with the foregoing, is that the power sought to be relied upon by the plaintiffs in the original proceeding, and purportedly relied upon by the Court in the order that issued on 13 May, was the power in UCPR r 5.3. Nevertheless, the use of the wrong power, assuming that the exercise of discretion is not materially different, does not invalidate the order otherwise issued. [13] The issuing of orders which a court or tribunal has power to make is not without jurisdiction, simply because the court or tribunal thought that its powers were conferred by one section or provision, whereas, in truth they were given by another. [14]

    13. R v Graham; ex parte Moore (1977) 138 CLR 165 at 173 (Gibbs J).

    14. Ibid, at [173].

Preliminary Discovery

36. As can be seen from the foregoing, the applicants in this proceeding, who were the plaintiffs in the previous proceedings, have, by leave of the Court, discontinued the previous proceedings. As a consequence, they submit that there are no proceedings on foot and the respondents to this application are now not, relevantly, parties to proceedings. Thus, the respondents to this application are not defendants to proceedings, in any relevant sense.

37. As a consequence, to the extent that there is a feared wrongdoing, [15] the respondents are, at best, "prospective defendants"., being persons who are the subject of reference in UCPR r 5.3. No issue was taken by the respondents as to that aspect.

    15. Norwich Pharmacal, supra; Idoport Pty Ltd v National Australia Bank Ltd [2004] NSWSC 695 at [126].

38. Rather, the respondents refer to the expression in rule 5.3 "may be entitled", the expression "unable to decide to commence proceedings", and, to a lesser extent, the term "reasonable enquiries". The respondents argue that the application now before the Court is an abuse of process and/or that the applicants have already made the decision to commence proceedings (which they had already done on 13 May 2022) and, as a consequence, are not entitled to preliminary discovery under UCPR r 5.3.

39. The Court of Appeal in O'Connor [16] outlined the steps necessary in order for an order under UCPR r 5.3. The Court identified five matters upon which the Court is required to be satisfied. They are:

“(i)   that the applicant may be entitled to make a claim for relief against the prospective defendants;

(ii)   that the applicant has made reasonable enquiries to obtain sufficient information to decide whether or not to commence proceedings;

(iii)   that, having made those enquiries, the applicant is unable to obtain sufficient information to make its decision;

(iv)   that the prospective defendant may have or have had possession of a document or thing that could assist in determining whether the applicant is entitled to make a claim for relief; and

(v) that inspection of such a document would assist the applicant to make the decision whether or not to commence proceedings.” [17]

16. O'Connor v O'Connor [2018] NSWCA 214

17. O'Connor, supra, at [21] (Simpson AJA, with whom McColl and Macfarlan JJA agreed).

40. Further, the Court in O'Connor, supra, made clear, by reference to earlier judgments, that the reference to the Court being satisfied that the applicant may be entitled to make a claim for relief does not require that the applicant show a prima facie or pleadable case. [18]

    18. Hatfield v TCN Channel Nine Pty Ltd (2010), 77 NSWLR 506; [2010] NSWCA 69.

41. Further again, the correctness or otherwise of any substantive claim or allegation of fact that may be taken, as a result of the provision of the information, is not a matter that concerns the Court at the time that it determines whether preliminary discovery should be granted. Otherwise, the Court would be dismissing at a preliminary stage that which may otherwise be a legitimate and arguable case, and dismissing it otherwise than in the circumstances of a summary dismissal. [19]

    19. General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69.

42. Thus, the Court does not determine, when dealing with an application under UCPR r 5.3, the merits of the substantive claim for relief that the applicant might propound. [20]

    20. O'Connor, supra, at [76].

43. No issue arises in the present application before the Court as to the possession, by the respondents, of a document or thing that could assist in determining whether the applicant is entitled to make a claim for relief, except in the sense that the respondents argue that the applicants have already determined that issue. Further, no real issue arises as to whether the applicant "may be entitled" to make a claim for relief against the respondents, who are, as earlier stated, now prospective defendants.

44. The respondents raise the issue of whether “reasonable enquiries” have been made. I am satisfied on the evidence before the Court — particularly the Exhibit to the first affidavit of Ms Giles, which has been tendered and admitted in this hearing — that the applicants have made reasonable enquiries to obtain sufficient information to decide whether or not to commence proceedings. The Court is satisfied of that factor. Further, the Court is satisfied that the applicant may be entitled to make a claim for relief against the prospective defendants.

45. At the kernel of the matters otherwise within the factors adumbrated in O'Connor and recited above, are: the issue of whether the applicants have "sufficient information" to make the decision as to whether to commence proceedings; the issue of abuse of process; and, as a consequence, whether the information "would assist the applicant to make the decision".

46. It is first to be noted that discontinuance of proceedings does not present a bar to subsequent proceedings, unless the Court granted leave to discontinue on terms that prevented subsequent proceedings. [21]

    21. KBRV Resort Operations Pty Ltd v Chilcott (2001) 51 NSWLR 516 at [527]-[528] (Sheller JA, with whom Ipp and Grove AJJA agreed).

47. In KBRV, supra, the Court allowed a discontinued proceeding to be removed from the District Court to the Supreme Court, because there was no jurisdiction in the District Court, but there was jurisdiction in the Supreme Court. There would have been time-limit issues were that removal not to be approved. In the words of Sheller JA:

"To read the section as preventing a party which has erroneously begun proceedings in the District Court, believing there to be jurisdiction where there was not, from removing them into the Supreme Court where there was jurisdiction would indeed be a triumph of form and technicality over substance and merit." [22]

22. KBRV, supra at [41].

48. An issue regarding the sufficiency of information needs noting. The respondents relied upon the judgment of White J (as his Honour then was) in Morton v Nylex Ltd. [23] His Honour was dealing with a claim for preliminary discovery under UCPR r 5.3. In the course of the judgment his Honour said:

“[33]   The onus is on the plaintiffs to make it appear to the Court that, having made reasonable inquiries, they are unable to obtain sufficient information to decide whether or not to commence proceedings against Nylex. The third requirement of r 5.3(1)(a) requires an objective assessment of the information already possessed by the plaintiffs to determine whether that information is sufficient for such a decision to be made. The question is whether the applicant has insufficient information to be able to decide whether to institute proceedings; not merely to establish a cause of action. Hence, an applicant may be entitled to preliminary discovery of documents relevant to available defences, or the extent of apprehended breaches, or the likely quantum of damages, as well as of documents which may establish whether there is a cause of action. However, unless the applicant is lacking something reasonably necessary to make a decision whether to institute proceedings, he or she is not entitled to preliminary discovery. An applicant must disclose what information he or she already has relevant to making such a decision, and identify what information is lacking. Preliminary discovery cannot be used to build up a case which an applicant has already decided, or could decide, to bring (Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (Lindgren J, Federal Court of Australia, 24 May 1996, unreported); St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at 154; Glencore International AG v Selwyn Mines Ltd (recs and mgrs apptd) (2005) 223 ALR 238 at 24; Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591 at [15]-[19], [25]).” [24]

23. Morton v Nylex Ltd [2007] NSWSC 562.

24. Ibid, at [33].

49. There was possibly tension between the statements there made by his Honour in expressing the view that the third requirement in UCPR r 5.3(1)(a) requires the Court to undertake an objective assessment of whether the information already possessed by the plaintiffs is sufficient. However, his Honour concludes with the proposition that preliminary discovery is not available where an applicant has already decided or could decide to bring the proceedings on the information already at hand.

50. In my view, there is, in reality, no tension between the two propositions. In the absence of a determination by an applicant for preliminary discovery that it shall take proceedings, the assessment, of whether the information already possessed by the applicants is sufficient for such a decision to be made, is determined by the Court objectively. However, where a decision has already been made to take the proceedings, it is unnecessary for the Court to assess the information already possessed.

51. Where an applicant for preliminary discovery has already formed the view that there is sufficient information for a proper basis to bring a claim for injunctive relief, for example, there is no occasion for the Court to assess the sufficiency of the information upon which that decision is based.

52. In the previous proceedings, the applicants on this application sought a quia timet injunction on the basis that, on the information it possessed, the then defendant would act in infringement of the then plaintiffs' rights unless restrained. Even though the then plaintiffs were unable to establish an actual infringement of those rights at the time that the proceedings were commenced, there was sufficient information available to the then plaintiffs to determine that a quia timet injunction ought to be sought.

53. The Courts, in relation to injunctive relief, encourage litigation at the earliest stage, lest the wrongdoing occurs, and the remedy is lost. The qualification to that encouragement is that plaintiffs are not encouraged to seek a remedy at a point in time where there is no real fear or imminent danger.

54. I do not consider that the application for preliminary discovery under UCPR r 5.3, at a point in time after the initial application, is an abuse of process. While even interlocutory orders and judgments ought not to be reopened or re-agitated inappropriately, where, as here, the interlocutory orders originally sought were found to be without jurisdiction, authority or power, it is open to a party, once jurisdictional facts have been established, to apply for the same remedy.

55. Nevertheless, the choice by the applicants to commence proceedings for a quia timet injunction (both interlocutory and final) establishes that the then plaintiffs had determined that there was “sufficient information” to make a “claim for relief".

56. As stated in the earlier judgment of the Court, as presently constituted, a claim for relief is a broad term defined in the UCPR, by reference to the Civil Procedure Act, as including declarations of right; the determination of any question or matter that may be determined by the Court; and, any other claim (whether legal, equitable or otherwise) that is justiciable in the Court.

57. Plainly, an application by summons for a quia timet injunction is a claim for relief. As a consequence, as at 13 May 2022, the applicants had decided that they had sufficient information to commence proceedings against the respondents. There is no evidence before the Court of a change of mind.

58. The Court is unable to determine otherwise than on the basis of the evidence before it that the applicants have made a decision, on the information already in their possession, to commence proceedings against the respondents.

59. The bizarre consequence of the foregoing, is that the Court of Appeal has determined that the applicants, as then plaintiffs, could not obtain preliminary discovery — having determined the then defendants were not “prospective defendants”, and the Court was without other jurisdiction or power to order the production of the Programme or Articles — and the Court, as presently constituted — having determined that the applicants have formed the view that there is sufficient information in their possession to commence proceedings — has determined that the applicants are now unable to obtain preliminary discovery under r 5.3.

60. One other issue ought to be mentioned. As referred to earlier, it is not immediately apparent that the director of the corporate applicant need be informed of the Programme and the Articles. The cause of action that excited the issuing of orders on 13 May 2022 was not defamation. It was injurious falsehood. The remedy for defamation is damages.

61. Injurious falsehood, as described in the reasons for judgment of 13 May 2022, requires deliberate falsity or wilful blindness. Given the documentation and material that has been produced, if the applicants’ lawyers were unaware of the falsity of an imputation, then it defies belief that the respondents would be aware of it. If an imputation concerns matters otherwise than within that compass, then presumably there would be an arguable case for wilful blindness.

62. It is unnecessary to deal with the discretionary issues because I have formed the view that I have otherwise expressed. Notwithstanding the Defamation Practice Note, [25] the reasons of 13 May 2022, which would ordinarily have been in short form, were slightly more expansive because of the nature of the controversy. These reasons, because of the litigation history, while also not complete, deal more fully with the issues than would otherwise occur.

    25. Practice Note SC CL 4, clause 22.

63. When the foregoing reasons were published to the parties. and the above orders announced, the Court noted that since the writing of these reasons the Reasons for Judgment of the Court of Appeal have been published. [26]

    26. Nine Network Australia Pty Ltd v Ajaka [2022] NSWCA 91.

64. The published reasons differ from the File Note (MFI 1) extracted above by referring, after the extract, to a confinement of the term “jurisdiction” to “power”. While accepting that such a confinement may ameliorate, or eliminate, one of the issues to which these reasons refer, it does not alter the outcome nor affect the comments relating to the powers of the Court to issue the orders of 13 May 2022, other than pursuant to UCPR r 5.3.

65. The Court makes the following orders:

1. Summons dismissed;

2. The applicants on the Summons shall pay the costs of the respondents of and incidental to the Summons.

**********

Endnotes

Amendments

09 June 2022 - Typographical error at [16].

10 June 2022 - File number added to coversheet

Decision last updated: 10 June 2022