Nine Network Australia Pty Ltd v Ajaka

Nine Network Australia Pty Ltd (the applicant) sought preliminary discovery from Mr Ajaka and others (the respondents) under rule 5.3 of the *Uniform Civil Procedure Rules 2005* (NSW). The applicant sought to identify a potential cause of action against the respondents. The primary judge dismissed the applicant's summons for preliminary discovery. The applicant sought leave to appeal this decision to the Court of Appeal of the Supreme Court of New South Wales.

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.