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Lessons from ‘unprecedented’ press freedom proceedings
Nine Publishing and associated parties have now broadcast a previously injuncted television investigation into the cosmetic surgery industry, following a successful appeal in the Court of Appeal in NSW. The case, two BigLaw partners say, “had the potential to undermine free speech”.
Simon Levett
The plaintiffs – Dr Joseph Ajaka and Cosmos Cosmetic Holdings – successfully brought proceedings against Nine, The Age, and presenter Adele Ferguson at first instance to view draft stories, intended for airing on 60 Minutes and in print, for reason that, as Justice Stephen Rothman noted, those stories may have carried an “injurious falsehood”, the damage from which could be “immeasurable, and probably irreversible”.
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Weeks later, the NSW Court of Appeal overruled the decision of Rothman J. Chief Justice Andrew Bell said that counsel for Dr Ajaka had conceded that the orders “made by Justice Rothman on the afternoon of 13 May 2022 were not sustained by any jurisdiction in the court. Those orders must be set aside”.
Bell CJ concluded that “no such power, jurisdiction or authority” for “preliminary discovery against a party or parties who were already defendants to proceedings” existed in law.
Dr Ajaka and Cosmos Cosmetic Holdings immediately filed a second summons for preliminary discovery of the proposed broadcast, but this was dismissed by Rothman J.
Marlia Saunders, partner at Thomson Geer, stated that “the decision to reject the preliminary discovery application for advance access to the 60 Minutes program and Sydney Morning Herald articles is hugely significant for public interest journalism”.
Ms Saunders continued that “the initial decision by Justice Rothman was extraordinary, in that it would have allowed the applicants to view the material prior to it being published, to see whether they had a cause of action for defamation or injurious falsehood”.
“While there had been previous examples of this happening, such orders had only been made in relation to dramatised television series but never before serious investigative journalism,” she told Lawyers Weekly.
The case demonstrates, Ms Saunders went on, “that the media will strongly resist any application which represents an intrusion into the investigative journalism process and undermines the media’s important role as the fourth estate”.
“Had the decision to grant preliminary discovery been allowed to stand, it could have set an adverse precedent and dramatically increased the costs and risks involved in publishing public interest journalism,” she said.
Ms Saunders concluded: “From a legal perspective, the decisions demonstrate that the preliminary discovery process cannot be used where a decision has already been made to pursue urgent injunctive relief. Here, the applicants had already decided that they had sufficient information to commence proceedings, and were therefore not entitled to seek preliminary discovery.”
Justin Quill, partner at Thomas Geer, added that “this is a particularly significant case – mainly because of the concerning original decision requiring Nine to hand over draft scripts for a publication that had not even been broadcast”.
“That was unprecedented, and a matter of great concern not only to Nine but to the media more generally. It had the potential to undermine free speech,” Mr Quill said.
He continued, “Nine are to be congratulated for not just accepting the judgement. The media and therefore the public are better off as a result.”
Mr Quill concluded that “hopefully decision-makers will not make such a wide ranging anti-free speech decision as to grant an injunction and ask a media organisation to hand over draft scripts”.
The case citation is Nine Network Australia Pty Ltd v Ajaka [2022] NSWCA 91.
