The Supreme Court has dismissed a second application by Dr Joseph Ajaka to obtain a pre-broadcast copy of a 60 Minutes segment he believed was going to defame him. With a rather tortured history, the case confirms the rules about how to use “preliminary discovery” to obtain evidence in defamation and other court proceedings – and highlights other options available.
Dr Ajaka has now taken formal steps towards commencing defamation proceedings by issuing a concerns notice.
60 Minutes had advertised an expose of the cosmetic surgery industry which Dr Ajaka believed would defame him. He wanted to see the segment before it was aired to decide whether it was defamatory and if he should seek a court injunction to stop it being aired.
Dr Ajaka’s first application was initially successful. However, this was overturned by the Court of Appeal because the purpose of preliminary discovery is to enable Dr Ajaka to decide whether to commence proceedings. By seeking an injunction against 60 Minutes, he had already made this decision, and preliminary discovery wasn’t available so his application failed.
In an attempt to avoid this issue, in a surprise move, Dr Ajaka then withdrew his first application for an injunction and preliminary discovery, and filed a fresh application, this time only seeking preliminary discovery.
What did the Court say?
In considering the application for preliminary discovery, Justice Rothman had to answer was whether, having made reasonable inquiries, Dr Ajaka was unable to obtain sufficient information to decide whether or not to commence proceedings against 60 Minutes.
As Dr Ajaka had already made the decision in the first application to seek an injunction, Justice Rothman found preliminary discovery was no longer required “to decide whether or not to commence proceedings” against 60 Minutes and dismissed the second application.
As the judge noted, in hindsight, Dr Ajaka could have kept the original application on foot and requested early discovery of the same documents or have the Court issue a subpoena for their production (among other options available).
Why is this interesting?
Preliminary discovery can be an important tool to obtain evidence before taking the sometimes more significant and costly step of commencing proceedings. It is, however, only one option and it is often more trouble and costs than it is worth. There can be a fine line between having enough evidence to support an application for preliminary discovery and having enough evidence to commence proceedings and then to obtain the evidence through early discovery or summons. It requires careful strategic thought.
60 Minutes rushed the segment to air after the decision with 60 Minutes’ Executive Producer saying, ‘given the extraordinary legal attempts that had already been undertaken to stop it, we felt we had no other options.’
After seeing the segment, Dr. Ajaka sent a concerns notice to 60 Minutes. A concerns notice is the first step to commencing proceedings under the Defamation Act.
Interestingly, Dr Ajaka has appeared on Channel Seven’s morning show on multiple occasions, promoting his cosmetic surgery business. They have understandably distanced themselves from Dr Ajaka following the expose on 60 Minutes (Channel Nine).
We will be watching the court lists with interest to see if Dr Ajaka will return.