Al Muderis v Nine Network Australia Pty Limited (No 2) [2024] FCA 136
File number(s):
NSD 917 of 2022
Judgment of:
ABRAHAM J
Date of judgment:
20 February 2024
Date of publication of reasons:
23 February 2024
Catchwords:
PRACTICE AND PROCEDURE – application to set aside subpoenas – objection to the grant of leave to issue further subpoenas – where recipients of subpoenas are said to be journalist’s confidential sources – where there exists a court order upholding claim of journalist privilege under s 126K of the Evidence Act 1995 (Cth) – whether subpoenas are an abuse of process – whether subpoenas serve a legitimate forensic purpose
HELD – application to set aside subpoenas granted – leave to issue further subpoenas is refused
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Al Muderis v Nine Network Australia Pty Limited (No 2) [2024] FCA 136
Case
[2024] FCA 136
Decision Date
CaseChat Overview and Summary
Al Muderis v Nine Network Australia Pty Limited (No 2) involved an application to set aside subpoenas issued to journalists' confidential sources, who were believed to be sources for Ms Grieve's reporting. The applicants argued that the subpoenas were an abuse of process and served no legitimate forensic purpose, given that a previous court order had upheld the journalist privilege under section 126K of the Evidence Act 1995 (Cth). The court was required to determine whether the issuance of the subpoenas constituted an abuse of process and whether they served a legitimate forensic purpose.
The court began by noting that the subpoenas were directed at individuals who had been promised confidentiality and were protected under the journalist privilege upheld by the court. The applicant argued that the subpoenas were aimed at verifying the identities of the confidential sources and obtaining documents related to their communications with Ms Grieve. The court considered the applicant's submissions and observed that the relevance of the subpoenas depended on whether the recipients were indeed confidential sources. Given the prior ruling upholding journalist privilege, the court found that the subpoenas were an abuse of process. The court further determined that the subpoenas did not serve a legitimate forensic purpose as they were directed at confirming the identities of the confidential sources, which was contrary to the established protection of journalist privilege.
The court granted the application to set aside the subpoenas issued on 9 October 2023 and refused leave to issue the five subpoenas filed on 8 December 2023. The reasoning was that the subpoenas were an abuse of the court's process, and there was no other way to protect the interests of justice but to strike out the subpoenas issued and refuse leave to issue the remaining subpoenas. This decision reinforced the importance of upholding journalist privilege and protecting the confidentiality of journalists' sources, even in the face of a party's desire to verify the identities of these sources.
Orders
Orders of the court
1. Pursuant to r 24.15(1) of the Federal Court Rules 2011 (Cth), the two subpoenas filed on 9 October 2023 which are the subject of the respondents’ interlocutory application dated 31 October 2023 be set aside.
2. In respect to the five subpoenas filed on 8 December 2023, for which leave to issue is sought but objected to, leave is not granted.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Given the circumstances in this case, the issue of these subpoenas is an abuse of the Court’s process. There is no other way to protect the interests of justice but to strike out the subpoenas issued and to refuse to grant leave to the remaining subpoenas: cf Jensen (No 6) at [78]. Conclusion For the reasons above, the subpoenas issued on 9 October 2023 are set aside and leave to issue the five subpoenas filed on 8 December 2023 is refused.
Ratio Decidendi
Legal Principle Established
The applicant submitted that although it is true that s 126K(1) reflects a general public policy in favour of the protection of journalists’ confidential sources, that must be balanced against the equally important public interest in the administration of justice and litigants’ right to have their causes of action determined on the basis of available relevant evidence: citing John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; (1988) 165 CLR 346 at 354; Madafferi v The Age Company Ltd [2015] VSC 687; (2015) 50 VR 492 at [49]-[51]. Where the journalist themselves has disclosed so much information that the source’s identity is ascertainable, the weight that can properly be given to the public interest in the protection of confidential sources, it was submitted, is reduced. Consideration It is appropriate to address some preliminary observations at the outset, before turning to the issue of abuse of process, and the bases on which the arguments were advanced. First, to state the obvious, this Court has already made a ruling on the application of s 126K in relation to Ms Grieve’s confidential sources. The subpoenas, on the applicant’s case, are directed to persons who Bromwich J concluded have been promised confidentiality and have genuinely held concerns for requiring confidentiality as explained to Ms Grieve (the evidence being accepted by Bromwich J). The applicant also did not satisfy Bromwich J to order disclosure of the confidential sources’ identities (on the basis that the applicant did not establish that the public interest in disclosure outweighed any likely adverse effect on the informant or other person, the public interest in the communication of facts and opinion to the public by news media, as well as in the ability of the news media to access sources of facts). I note that before Bromwich J, the applicant bore the onus of establishing that the journalist privilege applying to these 13 confidential sources should be overridden. This was not established. Given his Honour’s orders upholding the respondents’ claim for journalist privilege in respect to the 13 confidential sources challenged, the promise of confidentiality remains operative. I note that the applicant’s case before Bromwich J was also that he knew the identity of some of the confidential sources but as his Honour observed, the applicant did not submit that the journalist privilege had been waived or displaced by the journalist in any way. These applications are not to be considered in a vacuum. Rather, these subpoenas, and the applicant’s submissions in support, are advanced in the context where a ruling has been made by this Court that journalist privilege applies in relation to the confidential sources, which, on the applicant’s case, includes the seven recipients of these subpoenas. Second, the applicant’s written submissions reflect that these subpoenas are squarely directed to knowing or confirming whether the applicant’s belief as to the identities of seven of the confidential sources is correct (and to obtain documents recording what they told Ms Grieve). Category 1 seeks communications between the recipient and Ms Grieve; category 2, between the recipient and nominated patients. Little was said in support of category 2, but the applicant’s written submissions reflect it is premised on the basis that the recipient is a source of Ms Grieve and is therefore likely to have discussed the matter with the patient to obtain consent before speaking about them to Ms Grieve. That is the only basis advanced, and it reflects the nature of the communications sought. Put another way, (on the applicant’s case) any apparent relevance is relation to each subpoena is dependent on the recipient being a confidential source of Ms Grieve. No apparent relevance of the communications independent of that has been identified.