Citation: Ajaka v Nine Network Pty Ltd (No 2) [2022] NSWSC 765
Court: Supreme Court of NSW
Date: 9 June 2022
Judge: Rothman J
Background
The applicants, a medical professional and his associated company, sought preliminary discovery under UCPR rule 5.3 of a proposed 60 Minutes television programme and associated articles before their broadcast. The respondents were a television network, two media publications, and the programme's presenter.
Earlier, on 13 May 2022, the applicants had commenced separate proceedings seeking the same discovery, along with interlocutory and final injunctions. The Supreme Court made orders producing the programme and articles, but the Court of Appeal allowed an appeal against those orders on 8 June 2022, finding they were not supported by jurisdiction.
On the same day as the Court of Appeal hearing, the applicants obtained leave to discontinue the original proceedings and immediately lodged a fresh application for preliminary discovery under UCPR rule 5.3, arguing that, as there were now no proceedings on foot, the respondents were "prospective defendants" to whom the rule applied. Neither party's counsel had informed Rothman J of this intended manoeuvre before leave to discontinue was granted.
Legal Issues
- Whether, with no current proceedings on foot, the respondents qualified as "prospective defendants" for the purposes of UCPR rule 5.3
- Whether the applicants had made "reasonable enquiries" as required by rule 5.3
- Whether the applicants already had "sufficient information" to decide whether to commence proceedings, and whether they had in fact already made that decision
- Whether the fresh application constituted an abuse of process
Decision
Issue 1: Prospective defendant status and reasonable enquiries
Following discontinuance of the original proceedings, Rothman J accepted that the respondents were properly characterised as prospective defendants within the meaning of UCPR rule 5.3. The Court also found that the applicants had made reasonable enquiries to obtain sufficient information to decide whether to commence proceedings (at [44]). These elements of rule 5.3 were satisfied.
Issue 2: Whether the applicants had already decided to sue
The rule 5.3 requirement that an applicant be "unable to decide to commence proceedings" was the decisive obstacle. Rothman J held that where an applicant has already formed the view that there is sufficient information to bring a claim for relief, there is no occasion for the Court to assess objectively whether the information in hand is sufficient (at [50]-[51]). The applicants' earlier commencement of proceedings for a quia timet injunction (a pre-emptive injunction to prevent a feared wrong) demonstrated conclusively that, as at 13 May 2022, they had already decided they possessed sufficient information to sue (at [55]-[57]). No evidence was before the Court of any change of mind (at [58]).
Issue 3: Abuse of process
Rothman J declined to characterise the fresh application as an abuse of process. Where interlocutory orders are found to have been made without jurisdiction, a party may apply again once jurisdictional requirements are properly established (at [54]). However, this finding did not assist the applicants, because the substantive requirement of rule 5.3 remained unsatisfied.
Issue 4: Overall outcome
The result was that preliminary discovery was unavailable from both directions. The Court of Appeal had found the original orders lacked jurisdictional support when proceedings were on foot. Now, with proceedings discontinued, rule 5.3 was unavailable because the applicants had already made the decision to commence. Rothman J described this as a "bizarre consequence" of the litigation history (at [59]).
Orders Made
- Summons dismissed
- The applicants to pay the respondents' costs of and incidental to the summons
Key Takeaways
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Under UCPR rule 5.3, preliminary discovery is unavailable to an applicant who has already decided to commence proceedings against the prospective defendant. The decision to sue, once made, removes the very condition the rule requires, namely that the applicant be "unable to decide to commence proceedings" (at [57]-[58]).
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Where a court or tribunal makes an order it has power to make but attributes that power to the wrong provision, the order is not invalidated simply because the court identified the wrong source of power, provided the exercise of discretion is not materially different (at [35]).
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Discontinuance of proceedings does not automatically bar a subsequent application for preliminary discovery, and does not of itself constitute an abuse of process where original orders were set aside for want of jurisdiction (at [46], [54]).
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The objective assessment of whether an applicant holds sufficient information to decide to sue arises only in the absence of a prior decision by that applicant to litigate. Once such a decision has been made, no further assessment of informational sufficiency by the court is required or available (at [50]-[51]).
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Counsel's failure to disclose to a judge, at the point of seeking leave to discontinue, that discontinuance was being sought for the immediate purpose of relaunching proceedings under a different procedural vehicle is a matter the court may consider relevant to whether leave should have been granted on terms (at [18]).
Legislation and Cases Referenced
Legislation
- 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
- 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