Al Muderis v Nine Network Australia Pty Limited

Case [2023] FCA 1623

FEDERAL COURT OF AUSTRALIA

Al Muderis v Nine Network Australia Pty Limited [2023] FCA 1623

File number: NSD 917 of 2022
Judgment of: BROMWICH J
Date of judgment: 19 December 2023
Catchwords: EVIDENCE – where the applicant seeks to know the identity of 13 sources of information given to a journalist - where the respondents have refused to disclose their identities and claim statutory journalist privilege - where the applicant challenges the existence of the privilege and seeks to override the privilege under s 126K of the Evidence Act 1995 (Cth) – held: privilege established for all 13 sources; public interest in disclosing the 13 sources’ identities not demonstrated by the applicant to outweigh the public interest in not disclosing their identities; application dismissed; applicant to pay respondents’ costs.
Legislation:

Evidence Act 1995 (Cth) ss 126K(1), 126K(2), 126K(2)(a), 126K(2)(b), 138

Federal Court of Australia Act 1976 (Cth) Part VB

Defamation Act 2005 (NSW) ss 25, 29A, 31
Cases cited:

Ashby v Commonwealth of Australia (No. 2) [2012] FCA 766; 203 FCR 440

Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667

Attorney-General v Mullholland; Attorney-General v Foster [1963] 2 QB 477

British Steel Corporation v Granada Television Ltd [1981] AC 1096

Bunning v Cross [1978] HCA 22; 141 CLR 54, applying R v Ireland [1970] HCA 21; 126 CLR 321

Fox v Percy [2003] HCA 22; 214 CLR 118

John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; 165 CLR 346

Kumova v Davison [2021] FCA 753

Madafferi v The Age Company Ltd [2015] VSC 687; 50 VR 492

McGuiness v Attorney General of Victoria [1940] HCA 6;  63 CLR 73
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 310
Date of hearing: 10, 14 and 15 November 2023
Counsel for the Applicant: Ms S Chrysanthou SC and Mr T Smartt
Solicitor for the Applicant: HWL Ebsworth Lawyers
Counsel for the Respondents: Ms R Enbom KC and Ms C Roberts
Solicitor for the Respondents: Thomson Geer

ORDERS

NSD 917 of 2022
BETWEEN:

MUNJED AL MUDERIS

Applicant
AND:

NINE NETWORK AUSTRALIA PTY LIMITED ACN 008 685 407

First Respondent

FAIRFAX MEDIA PUBLICATIONS PTY LIMITED ACN 003 357 720

Second Respondent

THE AGE COMPANY PTY LTD ACN 004 262 702 (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

BROMWICH J

DATE OF ORDER:

19 DECEMBER 2023

THE COURT ORDERS THAT:

1.The respondents’ claim for journalist privilege under s 126K(1) of the Evidence Act 1995 (Cth) in respect of confidential sources referred to as CS#1 to #4, #6, #7, #9 and #11 to #16 be upheld.

2.The applicant’s interlocutory application under s 126K(2) of the Evidence Act 1995 (Cth) for an order that s 126K(1) not apply to the confidential sources referred to as CS#1 to #4, #6, #7, #9 and #11 to #16 be dismissed.

3.The applicant pay the respondents’ costs of and incidental to the claim for journalist privilege…

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AGLC
Al Muderis v Nine Network Australia Pty Limited [2023] FCA 1623
Case
[2023] FCA 1623
Decision Date

CaseChat Overview and Summary

The case of Al Muderis v Nine Network Australia Pty Limited involves a dispute between Dr Al Muderis and Nine Network Australia regarding the identity of 13 confidential sources who provided information to a journalist. The matter was heard in the Federal Court of Australia, where the central issue was whether the respondents could rely on journalist privilege to withhold the identities of the sources. Dr Al Muderis argued that the public interest in knowing the identities of the sources outweighed the public interest in maintaining their anonymity and sought an order under s 126K(2) of the Evidence Act 1995 (Cth) to compel disclosure. The respondents, on the other hand, asserted that journalist privilege applied to all 13 sources and that compelling disclosure would significantly harm the public interest in protecting journalistic sources.

The court examined the nature of the dispute, focusing on whether journalist privilege was established under s 126K(1) of the Evidence Act and whether the discretion to override this privilege under s 126K(2) should be exercised. The respondents maintained that the privilege applied to all 13 sources, while Dr Al Muderis argued that it should not apply or, if it did, the discretion should be exercised in his favour. The court found that the respondents had established journalist privilege for all 13 sources, as they had promised confidentiality to each one. Dr Al Muderis did not successfully demonstrate that the public interest in disclosure outweighed the public interest in maintaining the sources' anonymity or the potential harm to the sources. Consequently, the court dismissed Dr Al Muderis' application for disclosure and ordered him to pay the respondents' costs.

The court's decision upheld the respondents' claim for journalist privilege, finding that the public interest in maintaining the confidentiality of the sources was not sufficiently outweighed by the public interest in disclosure. The Federal Court's ruling emphasised the importance of protecting journalistic sources and the significant public interest in preserving the ability of journalists to gather information without fear of retribution.

Orders

Orders of the court

1. The respondents’ claim for journalist privilege under s 126K(1) of the Evidence Act 1995 (Cth) in respect of confidential sources referred to as CS#1 to #4, #6, #7, #9 and #11 to #16 be upheld.

2. The applicant’s interlocutory application under s 126K(2) of the Evidence Act 1995 (Cth) for an order that s 126K(1) not apply to the confidential sources referred to as CS#1 to #4, #6, #7, #9 and #11 to #16 be dismissed.

3. The applicant pay the respondents’ costs of and incidental to the claim for journalist privilege and the application for an order that s 126K(1) not apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 138 is also not confined to criminal proceedings, although that is where it usually arises. The onus imposed on a party seeking to rely upon evidence obtained improperly or in contravention of an Australian law (or as a consequence of such conduct) by s 138 is conceptually similar to the position of Dr Al Muderis who must establish that the discretion in s 126K(2) arising from the weighing exercise is enlivened and should be exercised in his favour, if the privilege is established by those asserting it for any given source.The evidence and circumstances relied upon by the respondents The respondents’ evidentiary case largely turns on the evidence of Ms Grieve in two affidavits, including documents she produced. Dr Al Muderis’ evidentiary case substantially depends on impugning Ms Grieve’s evidence, although he does rely upon other affidavit evidence as well. Ms Grieve’s affidavits Ms Grieve, who was the only witness to be cross-examined, provided two affidavits relied upon by the respondents in relation to this application, the first being one affirmed on 28 July 2023 for the substantive trial before Abraham J, and the second affirmed on 6 November 2023 for the specific purpose of responding to Dr Al Muderis’ seeking disclosure of her sources’ identities and building upon the first (July Affidavit and November Affidavit, respectively). The November Affidavit contained more detail regarding the conversations Ms Grieve had with each confidential source, particularly in relation to her conversations with them, about confidentiality, the information provided by each confidential source, their willingness to provide confidentiality and the corroborating sources she relied on in relation to the information provided by those sources. Dr Al Muderis submits that it is “unbelievable” that Ms Grieve would have a better recollection of promises to sources in November 2023 than in her notes or July affidavit. This sort of submission contains an oft-repeated proposition which has apparent logic, but in some circumstances can bear little resemblance to reality. Witnesses do not always record things accurately at the time of an event, not least because the significance of something may not have been appreciated at the time, or because of some misunderstanding at the time something has been said, or even because it is not thought necessary to record something at the time, including because of a belief that it is better not to do so. These comments reflect the human experience, without the benefit of hindsight so often a feature of litigation. Correspondingly, something that has not been written down may be more memorable than something that has been recorded, because of its indispensability to the overall event or circumstances. In the circumstances of this case, I do not accept that Ms Grieve had a poorer recollection of something of such fundamental importance to a journalist, especially an investigative journalist, as whether a source is willing to be named and openly used. I accept that such information would be able to be very briefly communicated and understood, and probably more so than unfamiliar and perhaps unexpected information necessarily recorded on the run.

Decision

Reasons for decision

If the discretion is enlivened, it would ordinarily be exercised to override the privilege. The respondents have not suggested otherwise.The nature of the dispute and the conclusions reached Journalist privilege not to disclose the identities of the 13 sources is asserted by the respondents, including Ms Grieve, under s 126K(1) of the Evidence Act 1995 (Cth). Dr Al Muderis’ primary case is that the privilege is not established under s 126K(1) for any of the 13 sources. His alternative case is that if journalist privilege is established for any of the sources, the discretion in s 126K(2) to order that s 126K(1) does not apply should be found to be enlivened, and the Court should therefore exercise the discretion and order disclosure. The discretion in s 126K(2) is enlivened if Dr Al Muderis satisfies the Court that the public interest in disclosure of evidence of the identity of each of the sources outweighs:(a)any likely adverse effect of that disclosure on the source (or anyone else, which is not raised by the respondents): s 126K(2)(a); and (b)the public interest in the communication of facts and opinion to the public by news media, including the ability of the news media to access sources of facts: s 126K(2)(b). The respondents contend that the discretion is not enlivened because the public interest in disclosure of the identity of any of the sources does not outweigh the public interest in not doing so and the likely adverse effect on 12 of the 13 sources. The identities of many other sources of information given to Ms Grieve have been disclosed, including medical practitioners who were previously not identified, but who now are, some of whom are witnesses for the respondents. Many former patients of Dr Al Muderis are identified and some are witnesses for the respondents. The identities of a subset of former patients of Dr Al Muderis have not been disclosed by reason of a claim of journalist privilege. That claim has not been challenged by Dr Al Muderis. It is convenient to refer to each source the subject of the claim of journalist privilege as an asserted confidential source by the letters “CS”, followed by a numeral used in the evidence and submissions. The disputed claim of journalist privilege, and the dispute as to exercising the discretion to require the disclosure of each identity if such a claim is made out, relates to sources referred to as CS#1 to #4, #6, #7, #9 and #11 to #16. Each source is referred to by male pronouns in these reasons, reflecting the system used in evidence and submissions. For the reasons that follow, I have decided that:(a)The promise not to disclose the identity of a source required by s 126K(1) was given by Ms Grieve to each of the 13 sources whose identity is sought by Dr Al Muderis. Accordingly, I find that journalist privilege has been established for all 13 confidential sources.(b)The discretion to compel disclosure of the identity of the 13 confidential sources under s 126K(2) has not been enlivened because:(i)The public interest in the disclosure of evidence of the identity of any of the 13 confidential sources relied upon by Dr Al Muderis has not been demonstrated to be substantial in the circumstances of this case, and does not outweigh the substantial public interest in non-disclosure under s 126K(2)(a).(ii)Additionally, the public interest in the disclosure of evidence of the identity of 12 of the 13 confidential sources (other than CS#16) has not been demonstrated to be substantial in the circumstances of this case, and does not outweigh the combined effect of the limited likely adverse effect of that disclosure on those 12 confidential sources under s 126K(2)(a) and the substantial public interest in non-disclosure under s 126K(2)(b). Pleaded imputations, defences, and reliance on confidential sources in the publications

Ratio Decidendi

Legal Principle Established

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