Clever Use of the Power to Order Pre-Action Discovery

The New South Wales Supreme Court has ordered Channel Nine to provide a draft story to a plaintiff before the story is broadcast. The decision raises concerns amongst lawyers, journalists, and the media about the freedom of press and free speech in Australia.   

Channel Nine has appealed the decision and it will be up to the Court of Appeal to determine whether use of the court’s pre-action discovery powers to find out what the media might be about to publish is an unnecessary restriction on freedom of the press, or a necessary precaution in preserving a person’s right to protect their reputation.

The decision

60 Minutes journalist, Adele Ferguson, has been investigating the cosmetic surgery industry. The plaintiff, Dr Ajaka, had been contacted by Ms Ferguson and asked to answer various questions.  He suspected her motives and went to court asking the court to require Channel Nine to let him see the proposed 60 Minutes story before it aired so he could determine whether it would be defamatory to him.

The judge made those orders saying the draft story should be provided to Dr Ajaka (and to the court) to enable Dr Ajaka to decide whether he should then ask the court to stop its broadcast. The judge considered this necessary because if the story did air and it was defamatory there was the potential for Dr Ajaka to suffer considerable irreversible damage.

What is defamation?

Defamation is the action of damaging a person’s reputation by publishing or communicating untrue statements to a third party.

The objects of the various Defamation Acts around Australia include the need to ensure the law does not unreasonably limit freedom of expression, whilst balancing the need to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter.  It is this precarious balancing act of rights to free speech and rights to protection of reputation that has seen a rise in high-profile defamation cases recently, in actions brought by actor Geoffrey Rush, MP Christian Porter, and the ongoing trial involving Ben Roberts-Smith and Fairfax/Channel Nine.

When will a court make an order prohibiting publication?

Courts are historically reluctant to stop the publication of potentially defamatory material.  If you want to ask the court to intervene before something is published, then you will have to establish:

  1. that it would be reasonable for a jury to find that the material is defamatory;
  2. it is unlikely the defendant would succeed in defending the defamation claim; and
  3. your reputation is significant enough that you are entitled to obtain more than only nominal damages.

Why has this decision caused so much concern?

The decision in Dr Ajaka’s case is rare. At least in NSW, the courts have only ordered a draft publication be provided to an applicant for the purpose of enabling them to assess whether they can make an application to prevent publication a handful of times.

The issue of whether to provide a person draft content prior to their publication by way of preliminary discovery was previously considered and rejected by the Court of Appeal in Hatfield v TCN Chanel Nine Pty Ltd [2010] NSWCA 69 (Hatfield).

Hatfield was a female police officer working in Kings Cross in the 1980s. Hatfield sought to obtain a TV season “Underbelly: The Golden Mile” from Channel Nine prior to it being aired. Hatfield wanted to assess if the season defamed her, and if so, she would apply to the courts to stop its release. Hatfield was concerned that the season of Underbelly would depict her engaging in illegal conduct.

The court rejected Hatfield’s application to obtain copies of the season of Underbelly prior to it being aired, because in the court’s view, Hatfield would be unsuccessful in convincing a jury the TV show defamed her, and therefore would be unsuccessful in applying to the court to obtain an order preventing its broadcast.

Another basis for rejecting Hatfield’s application was the court was reluctant to create a precedent enabling people to obtain potentially defamatory content prior to publication, as it would be against the public interest. The court further reasoned this would unfairly restrict the press and freedom of speech.

Since Hatfield courts have been reluctant to order the media to provide a plaintiff unpublished material for the purpose of enabling the plaintiff to assess if they can make an application to the court to prevent publication. Only when a court is satisfied that the plaintiff’s prospects of obtaining an injunction are not low or remote, and the defendant is unlikely to have a defence against a defamation claim, will such orders be made.

If the recent Supreme Court decision in Dr Ajaka’s case is upheld by the Court of Appeal, it will make it easier for people who are the subject of potentially defamatory content to apply to a court and obtain drafts of that content prior its publication.

This will place an added barrier to free press, and an additional burden on the media in establishing through the courts that material is not defamatory before it is even published. In practical terms, it forces media organisations to front up thousands, if not hundreds of thousands of dollars in legal costs to defend a defamation proceeding before any defamatory material has been published. This will become particularly dangerous where individuals who are the subjects of public interest journalism have the resources to sustain prolonged litigation.

On the other hand, it allows those whose reputation may be irreparably and unjustifiably damaged to take action before the damage is done.

As to Dr Ajaka’s case – watch this space. We will provide a further update when the Court of Appeal considers Channel Nine’s appeal.

For more information, please contact Brit Ibanez, Alex Ninis, Eliza Buchanan and Claudia Thorne.