Ajaka v Nine Network Pty Ltd

Supreme Court of NSW|2022-06-08|Before: Rothman J

Solicitors: Company (Giles) (Applicants) Thomson Geer (Respondents) File Number(s): 2022/00168581

Jurisdiction

I have already recited the pre-penultimate and penultimate paragraph of MFI 1, the File Note, reflecting the reasons for judgment of the Court of Appeal. At the urging of counsel for the applicants in the Appeal, or by virtue of that which was put to the Court of Appeal, the Court of Appeal determined that the orders made on 13 May 2022 "were not sustained by any jurisdiction in the Court".
The ex tempore reasons for judgment of the Court, in the initial proceedings, issued on 13 May 2022, contain the following comment: "[2] Preliminary discovery is dealt with in the Uniform Civil Procedure Rules 2005 (NSW) (hereinafter "the UCPR") by rule 5.3. It is also a matter that is within the inherent jurisdiction of the Court, as it was given to the Court by Royal Charter on 14 April 1824 and was continued by s 22 of the Supreme Court Act 1970 (NSW), and is, in part at least, described in s 23 of the Supreme Court Act, as all jurisdiction which may be necessary for the administration of justice in New South Wales." [7]
The provisions of the UCPR are incapable of granting the Court jurisdiction that is not otherwise possessed. The rules are made by the Uniform Rules Committee, established under s 8 of the Civil Procedure Act 2005 (NSW), which, pursuant to s 9 of the Civil Procedure Act, is empowered to make rules, not inconsistent with the Civil Procedure Act, with respect to any matter that is required or permitted to be prescribed or that is necessary or convenient to be prescribed by rules for carrying out or giving effect to the Act.
By operation of s 14 of the Civil Procedure Act, the Court, or a judge thereof (in this respect, including judges of the District Court), may dispense with any requirement of the rules of court. By s 16 of the Civil Procedure Act, the Court may give directions in circumstances not covered by the rules in relation to any aspect of practice or procedure for which the rules of the Court or Practice Notes do not provide. The proposition that UCPR r 5.3 is a grant of jurisdiction on the Court, not otherwise possessed, would put the rules at a level higher than the source of them.
The extract, above, from the earlier judgment refers to the jurisdiction by virtue of the Royal Charter, the continuation of the Court under s 22 of the Supreme Court Act 1970 (NSW), and the provisions of s 23 of the Supreme Court Act, which grants to the Court "all jurisdiction which may be necessary for the administration of justice" in the State. Indeed, the subsequent reference to the meaning of the term "necessary", by citing Pelechowski, [8] was a reference to the term in s 23 of the Supreme Court Act. In Pelechowski, the High Court referred to the term "necessary" in the following way: "[51] The term "necessary" in such a setting as this is to be understood in the sense given it by Pollock CB in The Attorney-General v Walker, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term 'necessary' does not have the meaning of 'essential'; rather it is to be 'subjected to the touchstone of reasonableness' (citations omitted)." [9]
The foregoing is not intended as a criticism of the Court of Appeal. There are times when the adversarial nature of proceedings creates its own difficulties. In the proceedings before the Court of Appeal, it seems, no one suggested that there was a power or jurisdiction to order production of the Programme or the Articles, except pursuant to the terms of UCPR r 5.3.
The difficulty with such a narrow understanding of the Court's jurisdiction or power is manifest. First, the UCPR, by operation of UCPR r 1.4, does not affect the right of any person to commence proceedings for discovery. Further, preliminary discovery was always treated differently from discovery against other non-parties which is, ordinarily, unavailable. [10]
The point of preliminary discovery, and its purpose, is to establish the identity of a wrongdoer (or probable wrongdoer), or the existence of the circumstances that give rise to the cause of action. The process originated in Chancery; the powers of the Courts of Chancery being granted to the New South Wales Supreme Court in 1824. Initially. the Equity Courts would, on application to them for discovery, stay the common law proceedings until discovery had occurred, unless the common law proceedings were otherwise adjourned or stayed.
The operation of UCPR r 1.4 is the reason that - notwithstanding that discovery, including preliminary discovery, is commenced by summons - the provisions of UCPR r 6.2 do not involve the circuitous proposition that, by filing the summons for preliminary discovery, proceedings have commenced.
Notwithstanding the foregoing, as already stated, I accept that the terms of MFI 1 are, to the extent necessary, the substance of the reasons for judgment of the Court of Appeal.
As a consequence, the Court, as presently constituted, is bound by the statement of the Court of Appeal that UCPR r 5.3 is the limit of the Court's jurisdiction or power to grant preliminary discovery, discovery of the kind ordered by the Court on 13 May 2022. If UCPR r 5.3 is a conferral of jurisdiction, it is ultra vires. I enquired of counsel appearing in this application as to whether either of them relied upon the invalidity of UCPR r 5.3. Understandably, neither sought to rely on any invalidity in the rule.
Contrary to the view expressed by counsel for the applicants, when appearing in the Court of Appeal this morning, the powers of the Court (and the rules in the UCPR relating to same) allowing the Court to order the production of a document by a party to proceedings are abundant. First, there is a power to order a party to proceedings to give discovery; [11] then produce forthwith the documents on the list in short time; [12] and to order production to the Court.
Secondly, the Court could order that, pursuant to the provisions of UCPR 21.10 and 21.11, the reasonable time for the production of anything on a Notice to Produce was the 12 hours or so allowed in the orders made on 13 May 2022. Lastly, and without dealing with the capacity to issue interrogatories (with which, with respect, any practitioner in defamation ought to be aware) the Court has the abundant powers regulated in the Rules by UCPR Part 33 to issue, inter alia, a subpoena to produce the Programme and Articles in the time required, under UCPR r 33.2, assuming for present purposes, that the time was a reasonable one.
The difficulty with the foregoing, is that the power sought to be relied upon by the plaintiffs in the original proceeding, and purportedly relied upon by the Court in the order that issued on 13 May, was the power in UCPR r 5.3. Nevertheless, the use of the wrong power, assuming that the exercise of discretion is not materially different, does not invalidate the order otherwise issued. [13] The issuing of orders which a court or tribunal has power to make is not without jurisdiction, simply because the court or tribunal thought that its powers were conferred by one section or provision, whereas, in truth they were given by another. [14]

Preliminary Discovery

As can be seen from the foregoing, the applicants in this proceeding, who were the plaintiffs in the previous proceedings, have, by leave of the Court, discontinued the previous proceedings. As a consequence, they submit that there are no proceedings on foot and the respondents to this application are now not, relevantly, parties to proceedings. Thus, the respondents to this application are not defendants to proceedings, in any relevant sense.
As a consequence, to the extent that there is a feared wrongdoing, [15] the respondents are, at best, "prospective defendants"., being persons who are the subject of reference in UCPR r 5.3. No issue was taken by the respondents as to that aspect.
Rather, the respondents refer to the expression in rule 5.3 "may be entitled", the expression "unable to decide to commence proceedings", and, to a lesser extent, the term "reasonable enquiries". The respondents argue that the application now before the Court is an abuse of process and/or that the applicants have already made the decision to commence proceedings (which they had already done on 13 May 2022) and, as a consequence, are not entitled to preliminary discovery under UCPR r 5.3.
The Court of Appeal in O'Connor [16] outlined the steps necessary in order for an order under UCPR r 5.3. The Court identified five matters upon which the Court is required to be satisfied. They are: "(i) that the applicant may be entitled to make a claim for relief against the prospective defendants; (ii) that the applicant has made reasonable enquiries to obtain sufficient information to decide whether or not to commence proceedings; (iii) that, having made those enquiries, the applicant is unable to obtain sufficient information to make its decision; (iv) that the prospective defendant may have or have had possession of a document or thing that could assist in determining whether the applicant is entitled to make a claim for relief; and (v) that inspection of such a document would assist the applicant to make the decision whether or not to commence proceedings." [17]
Further, the Court in O'Connor, supra, made clear, by reference to earlier judgments, that the reference to the Court being satisfied that the applicant may be entitled to make a claim for relief does not require that the applicant show a prima facie or pleadable case. [18]
Further again, the correctness or otherwise of any substantive claim or allegation of fact that may be taken, as a result of the provision of the information, is not a matter that concerns the Court at the time that it determines whether preliminary discovery should be granted. Otherwise, the Court would be dismissing at a preliminary stage that which may otherwise be a legitimate and arguable case, and dismissing it otherwise than in the circumstances of a summary dismissal. [19]
Thus, the Court does not determine, when dealing with an application under UCPR r 5.3, the merits of the substantive claim for relief that the applicant might propound. [20]
No issue arises in the present application before the Court as to the possession, by the respondents, of a document or thing that could assist in determining whether the applicant is entitled to make a claim for relief, except in the sense that the respondents argue that the applicants have already determined that issue. Further, no real issue arises as to whether the applicant "may be entitled" to make a claim for relief against the respondents, who are, as earlier stated, now prospective defendants.
The respondents raise the issue of whether "reasonable enquiries" have been made. I am satisfied on the evidence before the Court - particularly the Exhibit to the first affidavit of Ms Giles, which has been tendered and admitted in this hearing - that the applicants have made reasonable enquiries to obtain sufficient information to decide whether or not to commence proceedings. The Court is satisfied of that factor. Further, the Court is satisfied that the applicant may be entitled to make a claim for relief against the prospective defendants.
At the kernel of the matters otherwise within the factors adumbrated in O'Connor and recited above, are: the issue of whether the applicants have "sufficient information" to make the decision as to whether to commence proceedings; the issue of abuse of process; and, as a consequence, whether the information "would assist the applicant to make the decision".
It is first to be noted that discontinuance of proceedings does not present a bar to subsequent proceedings, unless the Court granted leave to discontinue on terms that prevented subsequent proceedings. [21]
In KBRV, supra, the Court allowed a discontinued proceeding to be removed from the District Court to the Supreme Court, because there was no jurisdiction in the District Court, but there was jurisdiction in the Supreme Court. There would have been time-limit issues were that removal not to be approved. In the words of Sheller JA: "To read the section as preventing a party which has erroneously begun proceedings in the District Court, believing there to be jurisdiction where there was not, from removing them into the Supreme Court where there was jurisdiction would indeed be a triumph of form and technicality over substance and merit." [22]
An issue regarding the sufficiency of information needs noting. The respondents relied upon the judgment of White J (as his Honour then was) in Morton v Nylex Ltd. [23] His Honour was dealing with a claim for preliminary discovery under UCPR r 5.3. In the course of the judgment his Honour said: "[33] The onus is on the plaintiffs to make it appear to the Court that, having made reasonable inquiries, they are unable to obtain sufficient information to decide whether or not to commence proceedings against Nylex. The third requirement of r 5.3(1)(a) requires an objective assessment of the information already possessed by the plaintiffs to determine whether that information is sufficient for such a decision to be made. The question is whether the applicant has insufficient information to be able to decide whether to institute proceedings; not merely to establish a cause of action. Hence, an applicant may be entitled to preliminary discovery of documents relevant to available defences, or the extent of apprehended breaches, or the likely quantum of damages, as well as of documents which may establish whether there is a cause of action. However, unless the applicant is lacking something reasonably necessary to make a decision whether to institute proceedings, he or she is not entitled to preliminary discovery. An applicant must disclose what information he or she already has relevant to making such a decision, and identify what information is lacking. Preliminary discovery cannot be used to build up a case which an applicant has already decided, or could decide, to bring (Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (Lindgren J, Federal Court of Australia, 24 May 1996, unreported); St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at 154; Glencore International AG v Selwyn Mines Ltd (recs and mgrs apptd) (2005) 223 ALR 238 at 24; Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591 at [15]-[19], [25])." [24]
There was possibly tension between the statements there made by his Honour in expressing the view that the third requirement in UCPR r 5.3(1)(a) requires the Court to undertake an objective assessment of whether the information already possessed by the plaintiffs is sufficient. However, his Honour concludes with the proposition that preliminary discovery is not available where an applicant has already decided or could decide to bring the proceedings on the information already at hand.
In my view, there is, in reality, no tension between the two propositions. In the absence of a determination by an applicant for preliminary discovery that it shall take proceedings, the assessment, of whether the information already possessed by the applicants is sufficient for such a decision to be made, is determined by the Court objectively. However, where a decision has already been made to take the proceedings, it is unnecessary for the Court to assess the information already possessed.
Where an applicant for preliminary discovery has already formed the view that there is sufficient information for a proper basis to bring a claim for injunctive relief, for example, there is no occasion for the Court to assess the sufficiency of the information upon which that decision is based.
In the previous proceedings, the applicants on this application sought a quia timet injunction on the basis that, on the information it possessed, the then defendant would act in infringement of the then plaintiffs' rights unless restrained. Even though the then plaintiffs were unable to establish an actual infringement of those rights at the time that the proceedings were commenced, there was sufficient information available to the then plaintiffs to determine that a quia timet injunction ought to be sought.
The Courts, in relation to injunctive relief, encourage litigation at the earliest stage, lest the wrongdoing occurs, and the remedy is lost. The qualification to that encouragement is that plaintiffs are not encouraged to seek a remedy at a point in time where there is no real fear or imminent danger.
I do not consider that the application for preliminary discovery under UCPR r 5.3, at a point in time after the initial application, is an abuse of process. While even interlocutory orders and judgments ought not to be reopened or re-agitated inappropriately, where, as here, the interlocutory orders originally sought were found to be without jurisdiction, authority or power, it is open to a party, once jurisdictional facts have been established, to apply for the same remedy.
Nevertheless, the choice by the applicants to commence proceedings for a quia timet injunction (both interlocutory and final) establishes that the then plaintiffs had determined that there was "sufficient information" to make a "claim for relief".
As stated in the earlier judgment of the Court, as presently constituted, a claim for relief is a broad term defined in the UCPR, by reference to the Civil Procedure Act, as including declarations of right; the determination of any question or matter that may be determined by the Court; and, any other claim (whether legal, equitable or otherwise) that is justiciable in the Court.
Plainly, an application by summons for a quia timet injunction is a claim for relief. As a consequence, as at 13 May 2022, the applicants had decided that they had sufficient information to commence proceedings against the respondents. There is no evidence before the Court of a change of mind.
The Court is unable to determine otherwise than on the basis of the evidence before it that the applicants have made a decision, on the information already in their possession, to commence proceedings against the respondents.
The bizarre consequence of the foregoing, is that the Court of Appeal has determined that the applicants, as then plaintiffs, could not obtain preliminary discovery - having determined the then defendants were not "prospective defendants", and the Court was without other jurisdiction or power to order the production of the Programme or Articles - and the Court, as presently constituted - having determined that the applicants have formed the view that there is sufficient information in their possession to commence proceedings - has determined that the applicants are now unable to obtain preliminary discovery under r 5.3.
One other issue ought to be mentioned. As referred to earlier, it is not immediately apparent that the director of the corporate applicant need be informed of the Programme and the Articles. The cause of action that excited the issuing of orders on 13 May 2022 was not defamation. It was injurious falsehood. The remedy for defamation is damages.
Injurious falsehood, as described in the reasons for judgment of 13 May 2022, requires deliberate falsity or wilful blindness. Given the documentation and material that has been produced, if the applicants' lawyers were unaware of the falsity of an imputation, then it defies belief that the respondents would be aware of it. If an imputation concerns matters otherwise than within that compass, then presumably there would be an arguable case for wilful blindness.
It is unnecessary to deal with the discretionary issues because I have formed the view that I have otherwise expressed. Notwithstanding the Defamation Practice Note, [25] the reasons of 13 May 2022, which would ordinarily have been in short form, were slightly more expansive because of the nature of the controversy. These reasons, because of the litigation history, while also not complete, deal more fully with the issues than would otherwise occur.
When the foregoing reasons were published to the parties. and the above orders announced, the Court noted that since the writing of these reasons the Reasons for Judgment of the Court of Appeal have been published. [26]
The published reasons differ from the File Note (MFI 1) extracted above by referring, after the extract, to a confinement of the term "jurisdiction" to "power". While accepting that such a confinement may ameliorate, or eliminate, one of the issues to which these reasons refer, it does not alter the outcome nor affect the comments relating to the powers of the Court to issue the orders of 13 May 2022, other than pursuant to UCPR r 5.3.
The Court makes the following orders: 1. Summons dismissed; 2. The applicants on the Summons shall pay the costs of the respondents of and incidental to the Summons.

Endnotes

Exhibit 2 for the Court on this application.
Ajaka v Nine Network Pty Ltd [2022] NSWSC 632.
File Note, Marked For Identification 1 (MFI-1) on the application.
Noting that court reporters were originally journalists and, in Australia, remained journalists until the last quarter of the 20th Century.
Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd [2001] VSCA 167 at [38]-[40] and the cases cited therein; R v Jones; Hilli (No 2) [2010] NSWCCA 195.
MFI-1.
Ajaka v Nine Network Pty Ltd [2022] NSWSC 632 at [2].
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19.
Ibid at [51].
Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133; [1973] 2 All ER 943.
UCPR r 21.2.
UCPR r 21.5.
R v Graham; ex parte Moore (1977) 138 CLR 165 at 173 (Gibbs J).
Ibid, at [173].
Norwich Pharmacal, supra; Idoport Pty Ltd v National Australia Bank Ltd [2004] NSWSC 695 at [126].
O'Connor v O'Connor [2018] NSWCA 214
O'Connor, supra, at [21] (Simpson AJA, with whom McColl and Macfarlan JJA agreed).
Hatfield v TCN Channel Nine Pty Ltd (2010), 77 NSWLR 506; [2010] NSWCA 69.
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69.
O'Connor, supra, at [76].
KBRV Resort Operations Pty Ltd v Chilcott (2001) 51 NSWLR 516 at [527]-[528] (Sheller JA, with whom Ipp and Grove AJJA agreed).
KBRV, supra at [41].
Morton v Nylex Ltd [2007] NSWSC 562.
Ibid, at [33].
Practice Note SC CL 4, clause 22.
Nine Network Australia Pty Ltd v Ajaka [2022] NSWCA 91.

Amendments 09 June 2022 - Typographical error at [16]. 10 June 2022 - File number added to coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 June 2022

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