Hatfield v TCN Channel Nine Pty Ltd

The appellant, Hatfield, sought preliminary discovery from the respondent, TCN Channel Nine Pty Ltd, under rule 5.3(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW). Hatfield asserted that he might have claims for relief against TCN Channel Nine, specifically an interlocutory injunction to restrain publication and defamation. The primary dispute concerned whether Hatfield was entitled to obtain preliminary discovery to ascertain the identity of a person or persons who had allegedly made defamatory statements about him, which TCN Channel Nine had broadcast.

The court was required to determine several legal issues. Firstly, it had to consider whether an application for an interlocutory injunction constituted a "claim for relief" for the purposes of preliminary discovery. Secondly, the court needed to assess the extent to which "fishing" expeditions are permissible in the context of preliminary discovery applications. Thirdly, the court had to consider the relevance of the likely prospects of success of an application for an interlocutory injunction to the exercise of the discretion to order preliminary discovery. Finally, the court was asked to consider whether a statutory prohibition on the use of evidence given unwillingly to a Royal Commission, under section 17(2) of the Royal Commissions Act 1923 (NSW), could be waived.

McColl and Young JJA, and Sackville AJA, in dismissing the appeal, reasoned that while an application for an interlocutory injunction could be considered a claim for relief, the appellant had not demonstrated a sufficient basis to justify the grant of preliminary discovery. The court found that the appellant's application was largely a "fishing" expedition, seeking to uncover information without a sufficiently clear or arguable case. The prospects of success on an interlocutory injunction were also considered, and the court noted that the prior publication of the allegedly defamatory imputations and the potential for a justification defence, alongside freedom of expression considerations, weighed against the grant of such an injunction. The court also addressed the issue of waiver of the statutory prohibition under the Royal Commissions Act, finding it was not applicable in this context.

Leave to appeal was granted, and the draft notice of appeal was to stand as the notice of appeal. However, the appeal was ultimately dismissed with costs.