Policy considerations underlying the reluctance to restrain defamatory publications are relevant but not determinative factors in the exercise of the UCPR r 5.3 preliminary discovery discretion; it is wrong to treat the jurisdiction as 'wholly exceptional' in defamation cases. However, where the prospects of obtaining an interlocutory injunction are extremely low (particularly where a justification defence is likely and the underlying events are in the public domain), the discretion should not be exercised in favour of ordering preliminary discovery. The statutory protection under s 17(2) of the Royal Commissions Act 1923 (NSW) cannot be waived by an unwilling witness deploying other material in evidence.
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