Al Muderis v Nine Network Australia Pty Limited (No 2)

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.