The New South Wales supreme court will rule for a second time on Thursday whether 60 Minutes will be compelled to hand over copies of a program about Double Bay cosmetic surgeon Joseph Ajaka after a dramatic day in which the court of appeal threw out the original order.
On Wednesday the court of appeal ruled that the supreme court did not have power to make its initial document discovery order on 13 May.
Chief Justice Andrew Bell said that legal counsel for Ajaka had conceded the orders “made by Justice Rothman on the afternoon of 13th May 2022 were not sustained by any jurisdiction in the court. Those orders must therefore be set aside”.
Bell said “no such power, jurisdiction or authority” for “preliminary discovery against a party or parties who were already defendants to proceedings” existed in law.
The media outlet’s barrister, Matthew Collins, QC, said it was as clear “as night follows day” that costs should be awarded to Nine for “this entire sorry episode”, and the court agreed.
Last month Ajaka won a court order at the eleventh hour preventing the broadcast of the program, reported by award-winning investigative journalist Adele Ferguson, and the publication of any subsequent articles in the Sydney Morning Herald and the Age.
In his May decision, Justice Stephen Rothman accepted there was a possibility that the level of damage to Ajaka and his Cosmos Clinic from the 60 Minutes program was “so great” that it was necessary for the draft content to be handed over.
Nine Entertainment, owners of 60 Minutes, immediately appealed the order.
After the order was dismissed, Ajaka’s barrister, Kieran Smark SC, immediately launched a fresh application before Justice Rothman.
In his submission Collins told the court the original order set a dangerous precedent for the media which may mean they could not signal upcoming stories without fear of an injunction.
Instead of saying “toxic cosmetic surgery industry: tune in on Sunday night”, broadcasters would be forced to simply say “major investigation: don’t miss it”, “without giving anything to tip off a potential plaintiff to the to the content”, Collins said.
Justice Rothman apologised to Collins at the end of proceedings, admitting he was “frustrated” by having to revisit the case.
Rothman said: “I should say Mr. Collins if I sounded rude to you at some stage that wasn’t my intention. And I apologise. I’m frustrated, frankly, by the process that the court has been required to go through and it does seem that the combination of judgements amounts to form over substance. I was hopeful that the court of appeal would deal with the substance of the issue rather than determine it on the aspect that they did.”
