Compelling Production of a Defamatory Draft

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. While this kind of pre-publication order is “extraordinary”, there is a principled basis for a court to make this kind of order. In the right circumstances, an Australian court may compel production of a defamatory draft through various procedural means. The 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 abundant, and may be exercised in rare circumstances.