Duma v Fairfax Media Publications Pty Limited (No 2)

Duma v Fairfax Media Publications Pty Limited (No 2) involved the admissibility of documents obtained by journalists from a confidential source, the identity of which they refused to disclose. The case was heard in the Federal Court of Australia. The primary issue before the Court was whether the documents were admissible under section 138 of the Evidence Act 1995 (Cth). This section provides that evidence obtained in consequence of an impropriety or a contravention of Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in that manner. The Court also had to consider whether the documents should be excluded under section 135 of the Act, which provides that evidence is to be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

The Court held that the documents were admissible under section 138 of the Act, despite the circumstances of their procurement. The Court found that the probative value of the evidence was significant, and the importance of the evidence in the proceeding was considerable. The Court also took into account the nature of the subject-matter of the proceeding and the gravity of the alleged impropriety. The Court found that the probative value of the evidence outweighed the undesirability of admitting evidence obtained in the way in which the evidence was obtained. The Court did not find it necessary to consider whether the documents should be excluded under section 135 of the Act.

The Court ordered that certain documents be admitted into evidence, and reserved the question of whether an order should be made limiting the use to which those documents should be put. The orders were made under Rule 39.32 of the Federal Court Rules 2011.