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Free speech trumps defamation

Four weeks ago, Justice Rothman, in the Supreme Court of New South Wales, made orders that created immense consternation among journalists throughout Australia. On the application of a cosmetic surgeon, Dr Ajaka, Justice Rothman ordered Channel Nine and the Sydney Morning Herald to hand over drafts of stories that they had prepared, so that Dr Ajaka could use those documents to prepare an action for injurious falsehood against the intending publishers.

Justice Rothman’s orders were made under rule 5.3 of the Uniform Civil Procedure Rules, which allow a prospective plaintiff to seek orders for preliminary discovery. The decision raised an important point of principle: whether it is desirable to allow a person who wishes to prevent the publication of information to stymie the publication by requiring the publisher to produce drafts of the material it intends to print or broadcast. Courts in Australia have generally taken the view that freedom of speech ought to be protected in these circumstances, and that anyone who is harmed by a publication is able to take action to obtain a suitable remedy after the event (by suing for defamation, for example). It would have a chilling effect on Australian journalism if a person who was to be the subject of a story had the power, in effect, to vet the story before publication.

Naturally, Nine Network Australia (which owns the Sydney Morning Herald) appealed. By a unanimous decision delivered on 8 June 2020, the Court of Appeal set aside the orders made by Justice Rothman. But it did so without saying anything about the policy issues at stake.

Clients involved in legal disputes are often puzzled by the fact that the decisions a court makes turn, not on big questions of policy or justice, but on what a lay person might think of as a technicality. This was one such case. As the court (Bell CJ, Ward P and Simpson AJ) pointed out, rule 5.3 of the UCPR only applies when a person makes an application concerning a “prospective defendant” – that is, when no substantive proceedings have yet been commenced against that person. Dr Ajaka had filed a summons against Nine Network and other defendants immediately before seeking the interim orders from Justice Rothman. As soon as that occurred, Nine Network and the other defendants were no longer “prospective defendants”, but actual defendants, and so rule 5.3 could not apply to them.

The Court of Appeal’s judgment had a particularly weird sequel. Dr Ajaka and his company promptly discontinued their substantive claim against Nine Network, so that they could bring a new application under rule 5.3, arguing that Nine Network had now become a “prospective”, not an actual, defendant. But Justice Rothman, to whom the fresh application was made, pointed out that the purpose of rule 5.3 is to enable a person to decide whether or not to bring an action against someone else, and Dr Ajaka had obviously made that decision already. His fresh application for preliminary discovery of the draft stories was dismissed.

What happened next? Well, the story on Dr Ajaka aired on Channel Nine and ran in the Sydney Morning Herald. Presumably more litigation will follow. And in Justice Rothman’s short judgment of 9 June ([2022] NSWSC 765), he found time to observe that he was “not an admirer of the style of most of [Charles] Dickens’ works (as a result of the original publication of them in serial form, which infects the novels)”. It isn’t yet clear whether Dickens’ descendants will be challenging that observation in the Court of Appeal.


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