In 2023, Michael published an article in the Australian Law Journal about forcing a person about to publish a defamatory publication to hand over their draft through compulsory court process.
Abstract
In Ajaka v Nine Network Pty Ltd, the Supreme Court of New South Wales considered an application by persons who believed they would soon be defamed by forthcoming media publications for interim injunctive relief and preliminary discovery, among other things. The Court compelled the media defendants to produce the draft story to the applicants, so the applicants’ lawyers could review the material in advance of the hearing of an interlocutory injunction to restrain publication. The media were critical of the decision, who described it as ‘unprecedented’. The article argues that, while this kind of pre-publication order may fairly be described as ‘extraordinary’, it is not unprecedented. Rather, there is a principled basis for a court to make this kind of order and other orders to the same effect. This article argues that, in the right circumstances, an Australian court may compel production of a defamatory draft through various procedural means. It supports and explores the proposition stated by Rothman J in another decision in this litigation, delivered 9 June 2022: ‘the powers of the Court … allowing the Court to order the production of a document by a party to proceedings are abundant’. The article argues that powers of superior courts, including State Supreme Courts and the Federal Court of Australia, to compel the production of a defamatory draft by a would-be publisher are also abundant. Those powers are abundant, and may be exercised in rare circumstances.
AUS DEFAMATION LAW 