Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Nine Network Australia Pty Ltd v Ajaka [2022] NSWCA 91 Hearing dates: 08 June 2022 Date of orders: 08 June 2022 Decision date: 09 June 2022 Before: Bell CJ, Ward P, Simpson AJA Decision: 1. Grant leave to appeal.
2. Direct that the Applicants, now Appellants, file a notice of appeal in the form of the draft notice of appeal.
3. Appeal allowed.
4. Set aside orders 1 to 9 of Rothman J entered on 20 May 2022.
5. Dismiss paragraphs 14 to 20 of the Respondents' summons filed in the Common Law Division on 13 May 2022.
6. The Respondents to the appeal are to pay the Appellants' costs of and incidental to the application for leave to appeal, the appeal and the hearings before Rothman J on 13 May 2022 and 20 May 2022.
Catchwords: CIVIL PROCEDURE – preliminary discovery – to identify potential cause of action – application for preliminary discovery pursuant to r 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) – whether preliminary discovery is available against a person who is already a defendant in proceedings brought by the applicant for preliminary discovery
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 5.2, 5.3
Cases Cited: Brydon v Australian Rail Track Corp Ltd [2014] NSWSC 1560
Morton v Nylex Ltd [2007] NSWSC 562
Pharmacy Guild of Australia v Ramsay Health Care Ltd [2019] NSWSC 1045
Category: Principal judgment Parties: Nine Network Australia Pty Ltd (First Applicant)
Fairfax Media Publications Pty Ltd (Second Applicant)
The Age Company Pty Ltd (Third Applicant)
Adele Ferguson (Fourth Applicant)
Joseph Ajaka (First Respondent)
Cosmos Cosmetic Holdings Pty Ltd (Second Respondent)Representation: Counsel:
M J Collins QC with D Sibtain and S Mukerjea (Applicants)
Solicitors:
K Smark SC with C P O’Neill (Respondents)
Thomson Geer (Applicants)
Company Giles (Respondents)
File Number(s): 2022/149639 Publication restriction: N/A Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Common Law Division
- Citation:
- Date of Decision:
- 13 May 2022
- Before:
- Rothman J
- File Number(s):
- 2022/140772
HEADNOTE
[This headnote is not to be read as part of the judgment]
On the afternoon of 13 May 2022, proceedings were commenced in the New South Wales Supreme Court by Dr Joseph Ajaka and Cosmos Cosmetic Holdings Pty Ltd (the Respondents), naming as defendants the following: Nine Network Australia Pty Ltd, Fairfax Media Publications Pty Ltd, The Age Company Pty Ltd and Ms Adele Ferguson, a well-known journalist associated with those media companies (the Applicants). The proceedings sought ex parte interim relief, preliminary discovery, interlocutory relief and final relief. The parts of the summons dealing with interim, interlocutory and final relief all sought the restraint of anticipated publications which the Respondents expected would carry defamatory imputations and false representations about them. Those publications included a forthcoming 60 Minutes program concerning the cosmetic surgery industry (the program), any newspaper articles…
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- Case
- [2022] NSWCA 91
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether preliminary discovery, as provided for by rule 5.3, was available against a person who was already a defendant in proceedings brought by the applicant seeking that preliminary discovery. The applicant contended that the rule permitted such discovery, even where the respondents were already parties to existing litigation.
The Court of Appeal held that rule 5.3 of the *Uniform Civil Procedure Rules 2005* (NSW) permits an applicant to seek preliminary discovery from a person who is already a defendant in proceedings brought by the applicant for the purpose of identifying a potential cause of action. The Court reasoned that the rule's language did not exclude existing defendants and that the purpose of preliminary discovery was to enable a party to identify potential defendants and causes of action, which could include identifying further causes of action against existing defendants. The Court allowed the appeal, set aside the orders of the primary judge, and dismissed the respondents' summons.
Orders
Orders of the court
1. Grant leave to appeal.
2. Direct that the Applicants, now Appellants, file a notice of appeal in the form of the draft notice of appeal.
3. Appeal allowed.
4. Set aside orders 1 to 9 of Rothman J entered on 20 May 2022.
5. Dismiss paragraphs 14 to 20 of the Respondents' summons filed in the Common Law Division on 13 May 2022.
6. The Respondents to the appeal are to pay the Appellants' costs of and incidental to the application for leave to appeal, the appeal and the hearings before Rothman J on 13 May 2022 and 20 May 2022.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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