However,lawyers for the cosmetic surgeon who brought the case have launched fresh proceedings in an attempt to try again.
Gold Walkley Award-winning investigative journalist Adele Ferguson.Simon Schluter
Last month,the NSW Supreme Court ordered the media outlets to provide draft copies of an investigation into the cosmetic surgery industry so they could be inspected by lawyers for Double Bay cosmetic surgeon Joseph Ajaka,who believed they may defame him or constitute an injurious falsehood against his Cosmos Clinic.
Ajaka had been asked a number of questions by journalist Adele Ferguson and launched the court action after a promo for a60 Minutes investigation was broadcast.
He was granted a temporary injunction on May 13,which meant the programs could not be published before his lawyers inspected the stories. However,the media outlets launched an appeal and the stories were not handed over.
On Wednesday,Chief Justice Andrew Bell dismissed the order after noting that the court can only compel a “prospective defendant” to hand over documents in this way,not someone who has already been sued.
He said Ajaka had filed a detailed summons seeking a range of orders against the media defendants and Ferguson,one of them being the document inspection.
Chief Justice Bell said “prospective” was mentioned four times in the relevant section of the Uniform Civil Procedure Rules,causing Ajaka’s barrister,Kieran Smark,SC,to concede that the court did not have power to make its initial order on May 13.
“It follows inevitably from that proper concession that the orders made by Justice Rothman on the afternoon of 13 May 2022 were not sustained by any jurisdiction in the court,” Chief Justice Bell said. “Those orders must therefore be set aside.”
Chief Justice Bell,who sat with Court of Appeal president Julie Ward and Acting Justice Carolyn Simpson,allowed the appeal and ordered Ajaka to pay the media outlets’ costs.
A short time later,Smark appeared before Justice Stephen Rothman and withdrew the initial proceedings,immediately bringing a second set of proceedings in which he only sought to inspect the draft stories.
Smark said Ajaka’s lawyers might inspect the drafts and take no further action,or could again bring proceedings for defamation or injurious falsehood. The barrister said litigation was “the only path open” to Ajaka,after Ferguson declined to say what would be in the program when contacted by Ajaka’s public relations consultant.
“They asked and asked and asked ‘what’s going to be in these programs’ ... they really hit a brick wall,” Smark said.
He said he was not trying to be abusive or “clever,in a pejorative sense” by asking for the discovery order for a second time.
Dr Matt Collins,QC,appearing for the media,said the application was “hopeless” and an abuse of process,because it presented materially identical evidence after it was “mucked up the first time around”.
Collins said preliminary discovery of documents was reserved for situations where a plaintiff didn’t know enough about a situation to launch proceedings. He said Ajaka clearly did know – because he did launch proceedings in May.
“They’re not saying ‘we need access to the script to work out whether we have a cause of action’,” Collins said. “They’ve made that decision.”
He said this situation is distinct from other cases,such as Gina Rinehart being granted access to television seriesHouse of Hancock before it was broadcast,because “this is an exercise in investigative journalism.”
Collins said there was a risk similar applications would be brought “as a matter of course”,which would place the court in a “quasi-editorial role”.
Justice Rothman said the application caused him “some disquiet”,noting a legal authority which said “if you could’ve taken a cause of action appropriately the first time,you can’t come back and do it again”.
Smark said the media organisations had made a “floodgate argument”,suggesting they could be deluged with similar litigation each time they emailed the subject of a story to ask them for comment. He said journalists are not legally obliged to ask for comment,and “it’s a matter for them if they do”.
Justice Rothman will deliver his decision on Thursday.
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