Pre-action discovery orders for defamation; or, how a cosmetic surgeon is causing deep lines of concern in the Australian news industry

Last weekend, a cosmetic surgeon named Joseph Ajaka went to court over advertisements he had seen for upcoming news stories that would criticize the cosmetic surgery industry. The court ordered the news editors to turn over the articles so he could take a look and decide whether to sue.

The press is naturally outraged. This type of order reflects a blatant incursion into freedom of expression. In effect, it gives the subject of a journalist’s investigation editorial control of a story. It should only be done in the rarest and most serious circumstances. Based on what’s in the judgment, it’s hard to see the rationale in this case.

To illustrate this, let’s go back to another time when this type of order was placed. In 2015, Gina Rinehart obtained court orders for her to receive an episode of the docudrama “House of Hancock” before it aired, so she could decide whether to seek a defamation injunction.

House of Hancock was not marketed as an investigative journal, but as entertainment. It was described as a dramatization, a “Dallas” type drama and being “straight out of Dynasty”. A producer said of the show “you’re not doing a documentary, you’re going to have to, you know, do hybrid characters”. You’re going to have to create scenes that may never have happened, and in doing so, there’s no doubt you’re going to hurt people along the way.”

Of Rinehart, he said she should go out to dinner rather than watch the episode, as it would make her look like “an obsessed, vindictive shrew” and it would “change people’s opinions of her”. From all of this, the judge drew the conclusion that there was a real possibility that the show was saying false and defamatory things about him.

Ok, now back to Ajaka. The court, relying on details of a complaint it largely suppressed, decided it could infer that the stories in question would identify Ajaka and criticize the cosmetic surgery industry.

Most blatantly, the Ajaka judgment fails to address the likelihood of falsity, which was at the heart of the Rinehart case and is clear from the evidence. We are talking about reports investigated by reputable journalists and not a docudrama. An inference of falsity must logically be much more difficult to find. There should also be a very high probability that the story is indefensibly defamatory; these types of orders have been refused in cases where it is simply suspected that the content might be defamatory.

Overall, the Ajaka case is very concerning. He is on appeal and the full court’s view will have massive implications for the entire news industry. So stay tuned, more to come after this commercial break.


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