Jensen v Nationwide News [No 5]
[2018] WASC 360
•22 NOVEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: JENSEN -v- NATIONWIDE NEWS PTY LIMITED [No 5] [2018] WASC 360
CORAM: TOTTLE J
HEARD: 12 OCTOBER 2018
DELIVERED : 22 NOVEMBER 2018
FILE NO/S: CIV 1535 of 2016
BETWEEN: DENNIS GEOFFREY JENSEN
Plaintiff
AND
NATIONWIDE NEWS PTY LIMITED
First Defendant
ANDREW BURRELL
Second Defendant
Catchwords:
Defamation - Practice and procedure - Application by defendants resisting plaintiff from the inspection of documents that would reveal the identities of journalist's confidential source - Nature, scope and application of the newspaper rule - Rule applied to protect the identity of the journalist's sources - Scope and application of the protection provisions (journalists) in s 20H to s 20M of the Evidence Act 1906 (WA) - Meaning of the phrase 'inappropriate partiality' in s 20K(1)(c) of Evidence Act 1906 (WA) - Whether the confidential source was an informant for the purposes of s 20G of the Evidence Act 1906 (WA) - Misconduct by informant by misusing information - Consideration of whether a direction to disclose identifying evidence should be given - Discretion to give direction to disclose identifying evidence - Consideration of the principles in s 20J of the Evidence Act 1906 (WA) - No direction given - Defendants' application resisting the disclosure of confidential sources identity granted
Legislation:
Defamation Act 2005 (WA)
Evidence Act 1906 (WA)
Interpretation Act 1984 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Defendants' application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M L Bennett & Mr A Tharby |
| First Defendant | : | Mr T Blackburn SC & Mr J D MacLaurin |
| Second Defendant | : | Mt T Blackburn SC & Mr J D MacLaurin |
Solicitors:
| Plaintiff | : | Bennett + Co |
| First Defendant | : | MacPherson & Kelley Lawyers |
| Second Defendant | : | MacPherson & Kelley Lawyers |
Case(s) referred to in decision(s):
British Steel Corporation v Granada Television Ltd [1981] AC 1096
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290
Jones v Dunkel (1959) 101 CLR 298
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
LVMH Watch & Jewellery Australia Pty Ltd v Michael Lassanah [2011] NSWCA 370
Madafferi v The Age [2015] VSC 687
Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; (2010) 265 ALR 281
Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1963] 1 All ER 413
West Australian Newspapers Ltd v Bond [2009] WASCA 127
TOTTLE J:
Introduction
In this defamation action the defendants have applied for orders that the plaintiff not be permitted to inspect three discovered documents except in redacted form. The documents are communications sent to the second defendant by confidential sources, sources A, B and C respectively. The application is brought to protect the identity of those sources and for that purpose the defendants invoke:
(a)the rule of practice known as the 'newspaper rule';
(b)the 'protection provisions (journalists)' (the protection provisions) contained in s 20G and s 20I to s 20M of the Evidence Act 1906 (WA);
(c)Order 26 r 1B of the Rules of the Supreme Court 1971 (WA) which the defendants say confers on them a prima facie entitlement to redact the documents and maintain the redactions unless the court orders otherwise.
The application is made against the background of the plaintiff's desire to administer interrogatories to the defendants for the purpose of compelling the defendants to disclose the identities of sources A, B and C and the identity of the person who provided the second defendant with two documents. These two documents include a letter on the plaintiff's parliamentary letterhead addressed to Ms Victoria Guttierrez of literary agent Curtis Brown (Australia) Pty Ltd (Curtis Brown), and an extract from a book written by the plaintiff entitled The Sky Warriors. The defendants say that they do not know who provided the latter documents to them. In practical terms, the outcome of this application determines the plaintiff's proposed application for leave to administer interrogatories directed to identifying the defendants' sources. Although the application was brought by the defendants, in substance, it is to be regarded as an application by the plaintiff for an order that the redactions made by the defendants to the documents be reversed.
The documents in question are:
(a)a text message sent to the second defendant by source A on 30 March 2016 that attached the plaintiff's application for pre‑selection as the Liberal Party's candidate for the seat of Tangney in Western Australia for the 2016 federal election;
(b)an email sent to the second defendant by source B on 6 April 2016 that attached a scanned image of the first page of a letter to pre-selectors written by the plaintiff's partner, Dr Trudy Hoad (now Jensen),[1] in support of the plaintiff's pre‑selection application);
(c)an email sent to the second defendant by source C on 9 August 2017 that forwarded an email sent by the plaintiff on 26 July 2017 to 171 members of the Liberal Party.
[1] The plaintiff and Dr Trudy Jensen were married in January 2017 but to avoid any confusion and without intending any disrespect I will refer to her as Dr Hoad.
The following summary of the background to the plaintiff's claim and the second defendant's counterclaim will provide the context for the application.
(a)The plaintiff is a former member of Federal Parliament. The first defendant is the publisher of The Australian newspaper. The second defendant is a journalist employed by the first defendant.
(b)The plaintiff sues on defamatory imputations he alleges were conveyed by articles written by the second defendant and published by the first defendant: the 31 March 2016 Newspaper Article and the 1 April 2016 Newspaper Article.
(c)The 31 March 2016 Newspaper Article:
•referred to the plaintiff's position as a federal MP facing pre-selection in his 'blue-ribbon West Australian seat of Tangney';
•referred to the plaintiff's book The Sky Warriors and in particular to a passage that contained a description of sexual activity between two characters described by the defendants as 'surprisingly graphic';
•suggested that if he was not pre-selected he could pursue a 'back-up' career as a writer of 'far-fetched fiction';
•referred to the support for the plaintiff by a section of the community described in the article as 'the evangelical Christian Right'; and
•referred to the fact that the letter to Ms Gutierrez of Curtis Brown prepared on the plaintiff's parliamentary letterhead and signed by him contained a statement to the effect that the plaintiff's identity as the author of the book should remain a 'closely guarded secret'. The article contained statements alleging that the plaintiff had secretly used his parliamentary letterhead to seek a 'publishing deal'. There is an issue as to whether the letter was actually sent to Ms Guttierrez.
(d)The 1 April 2016 Newspaper Article:
•appeared under the headline 'New Chapter as Jensen leaves family home';
•recorded that the newspaper had obtained a copy of the plaintiff's application for pre-selection in which he had listed his 'new' residential address as Halls Head;
•stated that the plaintiff had recently left the family home in Leeming to 'live about 60 km away with his new girlfriend';
•referred to the pre-selection contest and to difficulties that the plaintiff had encountered in obtaining pre‑selection in the past;
•stated that the plaintiff had admitted that he was wrong to have used his parliamentary letterhead to promote the publication of his book; and
•stated that the plaintiff conceded that he should not have used his official stationery to send sample chapters of his book to literary agents.
(e)Following the publication of the newspaper articles, in the course of two separate interviews given on 4 April 2016 broadcast by ABC Radio and Radio 6PR, the plaintiff made statements critical of the second defendant. By his counterclaim the second defendant seeks damages from the plaintiff on the basis of defamatory imputations arising from those statements.
The plaintiff contends that he requires the disclosure of the identity of the defendants' sources to be able to respond to the defendants' qualified privilege defences and to conduct his defence of the second defendant's counterclaim. The defendants rely upon the statutory defence of qualified privilege and the extended common law defence of qualified privilege based upon the implied constitutional freedom of communication on matters of government and politics.[2]
[2] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 571.
The evidence on this application
The defendants' evidence
The defendants' application was supported by two affidavits sworn by the second defendant, the first on 8 October 2018 and the second on 12 October 2018.
The second defendant deposed that he had been employed as a journalist by the first defendant since February 2010. He is currently the chief reporter in Western Australia for The Australian. He has worked as a journalist for approximately 24 years. He deposed that he covered politics, business, and general stories of interest to a national audience.
The second defendant gave evidence to the effect that in about the last week of March 2016 he found an A4 size envelope on his desk at his place of work at 34 Stirling Street, Perth. He said that the envelope contained the letter from the plaintiff addressed to Ms Gutierrez at Curtis Brown and the extract from the book The Sky Warriors. The envelope also contained a typewritten covering letter. The covering letter did not identify the author or the source of the documents. The second defendant deposed that:
I do not know the identity of the source of those documents who delivered them to me [sic].
The second defendant's evidence about his relationship with sources A, B and C was to the effect that he had dealt with each of them over a number of years and that each had provided him with information on a confidential basis. His evidence was to the effect that his understanding was that information provided by each of them was provided on 'the basis of anonymity' unless matters were plainly within the public domain.[3]
[3] Affidavit of Andrew Burrell sworn 8 October 2018 [11] - [13], [18] - [20], [24] - [26].
The second defendant deposed that the text message attaching the pre‑selection application was sent to him by source A. The second defendant deposed that:
On this occasion Confidential Source A said words to the effect of 'I will give you this information as long as you don't use my name in the story. It didn't come from me.' I recall giving Confidential Source A that promise during that conversation, in response, though cannot recall [sic] the precise form of words I used.
The second defendant deposed that he regarded the plaintiff's application for pre-selection as being provided to him on the understanding that it was the subject of an express promise that source A's identity would remain confidential for all time. He deposed that inspection of the text message would allow the plaintiff to learn the identity of source A.
The second defendant deposed that the email attaching the first page of Dr Hoad's letter to pre-selectors was sent to him by source B. He deposed that:
To the best of my recollection, Confidential Source B said words to the effect of 'I will email this document to you. I'm sure they won't know it's me because there are a lot of … ' (and then Confidential Source B said words that would potentially identify him or her as a member of a class of persons) and went on to say 'who could have sent this to you so I will be okay'. In response, I recall saying words to the effect of 'that is fine, I obviously will not reveal who sent this document to me'.
The second defendant deposed that the email attaching the plaintiff's 26 July 2017 email to Liberal Party members in Western Australia was sent to him by source C, and that he had a discussion with source C in relation to the plaintiff's email which he recounted as follows:
I recall Confidential Source C saying words to the effect of 'I will send this to you but it didn't come from me'. I gave that promise to Confidential Source C during that conversation in response, though I cannot recall the precise form of words I used.
The second defendant deposed that disclosure of source C's email would involve disclosing the name and email address of source C.
The second defendant gave general evidence to the effect that confidential sources are a 'regular and valuable part of a journalist's practice' and that if journalists are unable to maintain confidentiality potential sources would be reluctant to provide information. The second defendant gave examples of stories he had authored on matters of public interest based on information provided by confidential sources.
The second defendant also deposed that if he was to reveal the identity of sources A, B and C, it is highly unlikely that they would provide him with information or documents in the future and that his ability to function as a journalist writing political stories would be adversely affected. The second defendant also deposed that if the identities of confidential sources A, B and C were revealed, there would be 'significant damage to their respective professional reputations' though, while he could not say 'with any certainty exactly what would happen, it is likely that they would each lose trust within their respective fields.'
The defendants initially opposed the disclosure of redacted copies of the documents. In the course of the hearing, however, copies of the documents, redacted to mask the identities of the sources, were provided to the plaintiff's counsel and the court.
The plaintiff's evidence
The plaintiff relied on an affidavit affirmed on 11 October 2018 by one of his solicitors, Mr Alexander Tharby. Many of the matters to which Mr Tharby deposed in his affidavit were matters about which he had been informed by the plaintiff and which he believed to be true.
Mr Tharby deposed that he had been informed by the plaintiff that he did not recall preparing and signing the letter to Ms Gutteriez of Curtis Brown on his parliamentary letterhead or having a telephone call with anyone from Curtis Brown in 2007 or at all. Mr Tharby deposed that:
[the plaintiff] had discussed with his office staff trying to get his book … published in about 2007, and after discussing it with them, he decided not to try have his book published.
Mr Tharby recounted the plaintiff's version of a telephone conversation between the plaintiff and the second defendant on 30 March 2016 as follows:
6.4On 30 March 2016 at about 3 pm, Dr Jensen had a telephone call with the second defendant (Mr Burrell) during which:
6.4.1Mr Burrell asked Dr Jensen whether he sent the book to a publisher or literary agent (Dr Jensen does not recall which terms was used), Dr Jensen said no, Mr Burrell said that he had 'proof' that Dr Jensen had done so and Dr Jensen accepted that he must have done so;
6.4.2Mr Burrell asked Dr Jensen about the subject matter of the book and Dr Jensen explained what it was about;
6.4.3Mr Burrell asked whether Dr Jensen considered it appropriate to have sent the book to be published;
6.4.4Dr Jensen asked what Mr Burrell's article would be about and Mr Burrell replied with words to the effect of 'it's just a light‑hearted article about the book. I'm not sure whether it will even go to print'; and
6.4.5Mr Burrell did not specifically refer to or ask Dr Jensen about:
(a)the letter to Curtis Brown or any letter on Parliamentary Letterhead;
(b)the sex scene in The Sky Warriors book;
(c)Dr Jensen's living arrangements.
Mr Tharby attached to his affidavit a letter sent by Curtis Brown to the court in answer to a subpoena together with other materials provided by Curtis Brown which suggested that it had not received the plaintiff's letter or a copy of The Sky Warriors.
Mr Tharby attached to his affidavit a copy of the plaintiff's application for pre‑selection completed in March 2016. Mr Tharby deposed:
16I am informed by Dr Jensen and verily believe that:
16.1the Liberal Part of WA pre-selection process, which applied in the Division of Tangney in 2016, required nominees to prepare a formal application form to provide information to delegates (the branch members nominated to vote for nominees to determine the Liberal Party candidate for the relevant seat);
16.2the pre-selection form is lodged with Liberal Party headquarters prior to the pre-selection ballot;
16.3according to Liberal Party rules, pre-selection application forms were, and to Dr Jensen's knowledge are, supposed to be strictly confidential;
16.4the pre-selection application forms are only provided to specified people at head-office (such as the State Director and the chair of the pre-selections committee) and the delegates. Nominees are not provided with each other's application forms;
16.5if candidates want their applications kept confidential, they are, and not even their names are released to the media;
16.6every person who gets a copy of the application is told that the contents are not to be divulged to anyone;
16.7on the day of the pre-selection ballot, delegates are required [to] bring their copy of the application and return it to the Chair of the Selection Committee; and
16.8Dr Jensen prepared his pre-selection application form and lodged it with Liberal Party headquarters on the basis that it was a confidential document and would only be dealt with on the above basis.
Mr Tharby attached to his affidavit a copy of the Liberal Party of WA Constitution downloaded by him from the publicly accessible Liberal Party of WA website and deposed that he had been informed by Dr Jensen that the provisions are in similar terms to the provisions of the Constitution in March and April 2016. Part XVII of the Constitution governs the selection and endorsement of candidates. Clause 120 appears in Part XVII and reads as follows:
Any candidate for selection may require that the fact of his or her candidature remain confidential.
I interpolate that there is no evidence that the plaintiff required the fact of his candidature to remain confidential and given that he was the sitting member it would be surprising if he were to have done so.
Mr Tharby attached to his affidavit:
(a)an email sent on 23 March 2016 by Ms Amy Webb, Membership and Events Coordinator of the Liberal Party (Western Australian Division) addressed 'Dear Applicants' - I infer the applicants were the plaintiff and Mr Morton - attaching a notice of meeting for the Tangney Pre-Selection 'as well as the contact details for the Tangney Selection Committee'. Ms Webb went on to state, 'These details should be kept confidential'.
(b)an email sent on 24 March 2016 by Ms Webb to 'Branch House of Representatives Selection Committee Delegates' attaching a 'notice of meeting and delegate information sheet for the Tangney Pre‑Selection as well as the applications'. Ms Webb stated 'The applications should be kept confidential'. The notice of meeting signed by Mr Andrew Cox in his capacity as 'State Director' recorded:
The Candidates' dossiers are enclosed and you are reminded that these details and any discussions within the Selection Committee are strictly confidential.
Mr Tharby gave evidence about the plaintiff's living arrangements. He deposed that he had been informed by the plaintiff that he had lived with his former wife and children in Leeming (which was within the Tangney constituency) until he and his former wife separated in July 2014, following which he moved to what was then the family holiday home in Halls Head. The former family home in Leeming was sold in February 2015 and the plaintiff updated his Parliamentary Register of Interests to reflect his change of asset position. Mr Tharby deposed that the plaintiff had met Dr Hoad in November 2014 and that they had remained together since then and that the plaintiff had been open about his place of residence and his relationship with Dr Hoad. Mr Tharby attached a copy of the plaintiff's Parliamentary Register of Interests that he had downloaded from the publicly accessible Parliament of Australia website.
Mr Tharby attached a copy of Dr Hoad's letter to Liberal Party members which the plaintiff had informed him Dr Hoad had sent to various Liberal Party members as part of his pre-selection campaign.
Mr Tharby also deposed that the plaintiff had informed him that he had sent the 21 July 2017 email to 171 Liberal Party members and attached a redacted copy of the email to his affidavit.
Outline of the parties' submissions
Defendants' submissions
The defendants' submissions commence with the contention that the case should not be seen as a 'traditional case of a source based article', that is, that all that was obtained from the known sources and was referred to in the articles were the documents themselves which are not said to be bogus or unreliable. The defendants submit that in this case, unlike other source cases, the identity of the source does not bear upon the reliability of the documents disclosed.
Senior counsel for the defendants submitted that the core proposition relied on by the plaintiff was that it was unreasonable for the defendants to have deployed genuine documents in the articles because, so the plaintiff contended, they might have come from his political opponents. Senior counsel for the defendants characterised this proposition as fundamentally weak and argued that the fact that the documents may have been provided by a political opponent is not a basis for concluding that genuine documents should not be deployed in a newspaper article.[4]
[4] ts 98 - 99.
The defendants point out that they do not themselves plead or otherwise invoke the reliability of the sources in respect of the question of reasonableness in publication. They remind the court that until the recent amendments made by the plaintiff to his reply and defence to counterclaim, the major issues in the context of the reasonableness of publication were the adequacy of contact with the plaintiff prior to the publication and the motives of the defendants in making the publications.
The defendants submit that the protection provisions should be construed to apply to interlocutory processes.
The defendants submit that the second defendant's evidence establishes that the sources of the documents are informants to whom the second defendant, in his capacity as a journalist, gave a promise not to disclose their identities whilst employed by the first defendant. The defendants submit that by reason of the operation of s 20I of the Evidence Act a presumption arises that neither of the defendants can be compelled to give evidence of the identity of the informants.
The defendants accept that the protection afforded to a journalist is not absolute and that pursuant to s 20J of the Evidence Act 'a person acting judicially' may direct a journalist or a journalist's employer to give identifying evidence if the criterion identified in s 20J(2) of the Evidence Act is satisfied. The defendants accept that s 20J(2) of the Evidence Act confers a wide discretion upon the court. In seeking that discretion to be exercised in their favour, the defendants rely upon the second defendant's evidence as to:
(a)the public interest elements in a journalist being able to assure his or her sources that their anonymity will be respected;
(b)what would likely happen if sources could not be assured of anonymity;
(c)how this advances the free flow of information in the public interest; and
(d)what sort of articles the second defendant has been able to produce dependent upon confidential sources, including stories of corruption, illegal activity and other matters of public interest that would otherwise remain undisclosed.
The defendants contend that there are no factors, or no factor of sufficient weight, that favour compelling the exercise of the discretion to order disclosure of sources. They refer in particular to the fact that the articles do not quote sources or attribute information to sources and that it is only in respect of the 1 April 2016 Newspaper Article that the source is even known. They contend that the source of information that appeared in publications relied upon only as to aggravated damages is not relevant as it is what appears on the face of those publications that is relevant to the question of aggravation.
The defendants contrast the present case with Madafferi v The Age,[5] in which disclosure of the sources was not ordered, but in which:
(a)there were serious allegations of criminal conduct and confidential sources were referred to in a way which cast them as well-placed and informed sources;
(b)the defendant pleaded that the sources were sources of integrity and the journalist relied upon the integrity of the sources and believed them to be speaking the truth; and
(c)the court recognised that the non-disclosure had the potential to have a negative impact on the plaintiff's capacity to defeat the qualified privilege defence but the court was of the view that the hampering of the qualified privilege defences was not decisive and did not outweigh other considerations.
[5] Madafferi v The Age [2015] VSC 687.
The defendants' submissions were directed primarily to the application of the protection provisions and why a direction to disclose the identity of the sources was not warranted. The defendants relied upon substantially the same submissions in support of their contention that the newspaper rule applied and protected them from any requirement to disclose the identity of the sources.
Plaintiff's submissions
The plaintiff submitted that s 20I of the Evidence Act and the newspaper rule only permitted the defendants to protect the identity of the source of information and not communications with the source - a proposition ultimately not contested.
The plaintiff submitted that the protection provisions do not apply to the processes of discovery, inspection and interrogatories. In support of that submission the plaintiff contended:
(a)The task of statutory construction begins and ends with the statutory text.[6]
(b)The focus of s 20I is the compellability of a journalist to 'give evidence'. This phrase is not defined either in the Evidence Act or in the Interpretation Act 1984 (WA) but the phrase is used in the Evidence Act in the context of witnesses giving oral evidence at trial.[7]
(c)Section 15 of the Evidence Act draws a distinction between a person being compellable to give evidence and being compellable to produce documents, and if the phrase 'to give evidence' was intended to include 'to produce documents' ‑ whether by discovery, under subpoena or otherwise - the latter words would be redundant when used in s 15 and would result in disharmony between different sections of the Evidence Act. The plaintiff supports this contention by reference to provisions of the Supreme Court Act1935 (WA) and the Rules of the Supreme Court 1971 (WA) which distinguish between giving evidence and producing documents.
(d)The absence in the Evidence Act of a provision equivalent to s 131A of the Evidence Act 2008 (Vic) evinces a different legislative intention.
(e)The second reading speech to the amending Bill identifies only that Parliament intended to 'strengthen' the existing protections afforded to journalists 'by introducing a presumption that a journalist is not compellable to give identifying evidence …'. The plaintiff argues that the protection provisions have that strengthening effect with the newspaper rule applying to interlocutory processes and the statutory provisions extending the protection to giving evidence.
(f)Thus, the proper construction of s 20I of the Evidence Act renders the protection provisions inapplicable to discovery, inspection and interrogatories.
[6] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39].
[7] See Evidence Act 1906 (WA) s 8, s 9, s 12(3), s 14, s 15, s 16(1)(b), s 19, s 25, s 50B(4) and (7), s 79B, s97, s 106B, s 106C, s 106F, s 106N, s 106O, s 106R, s 106RA, s 106T, s 110 and s 119.
The plaintiff contends that none of the second defendant's sources were 'informants' within the meaning of s 20G of the Evidence Act because there was no evidence from the second defendant that any of the sources gave information to him, 'in the expectation that the information [might] be published in a news medium'.
The plaintiff contends that there is no evidence that the second defendant made promises to the sources that he would not disclose their identities.
The plaintiff argues that the public interest in disclosure of the identity of the sources outweighs the public interest in the non‑disclosure. In support of this argument he develops the following contentions:
(a)The public interest in the due administration of justice is, at common law, paramount to any public interest in non‑disclosure. The due administration of justice involves notions of natural justice and procedural fairness and modern case management regimes adopt a 'cards on the table' approach to litigation.
(b)In this case, the defendants plead qualified privilege and, in doing so, have invited the enquiry of their sources as a relevant consideration as to whether the publication of the defamatory material was 'reasonable in all the circumstances'. The plaintiff argues that, as a matter of fairness and justice, the defendants should not be permitted to cherry pick which particular circumstances are disclosed to the plaintiff. The plaintiff goes further and says that where a plaintiff pleads malice, as he has done, the identity of the source is all the more important to permit a plaintiff to properly respond to a defendant's qualified privilege defence.
(c)The plaintiff also points to the second defendant's counterclaim and contends that he has 'set the battle lines for his counterclaim' by reference to his sources. He therefore argues that the second defendant's sources are critical to his ability to defend himself against this attack.
(d)It would be inimical to the due administration of justice if journalists were able to write stories about persons, even political figures, and potentially avoid the consequences of defaming them simply due to a vague promise made to a volunteer source.
(e)The plaintiff argues that the second defendant's evidence as to the effect that disclosure of their identity will have on his sources is so lacking in detail as to be meaningless.
(f)The plaintiff argues that the emphasis placed by the second defendant upon the importance of his sources for his professional purposes is overstated.
(g)The plaintiff argues that nothing in the second defendant's affidavit adds to the general notions of freedom of the press as discussed in the authorities.
(h)The plaintiff argues that, in terms of balancing the competing factors, the extent to which disclosure of the identity of the sources would have any effect on the free flow of information to the media is a result of the decisions made by the defendants.
(i)The plaintiff addresses the factors identified in s 20J(3) of the Evidence Act as follows:
(i)the identity of the sources will have significant probative value by permitting him to ascertain (including by use of other pre-trial procedures) the sequence of events that led to the publication of the articles so that he is not ambushed at trial;
(ii)the identity of the sources is important in the proceeding in that it would allow a proper assessment of the defendants' motives in publishing the article and whether the publication is reasonable in the circumstances - the plaintiff says these factors may be critical to the success or failure of the claim and counterclaim;
(iii)the defamation action is serious in its nature, particularly given the charge against him which the defendants seek to justify, in particular that he misused his parliamentary letterhead for personal financial gain, a charge which the plaintiff says is akin to corruption;
(iv)no other meaningful evidence is available concerning the matters to which the identifying evidence relates - the best the plaintiff can do is to identify that the information and documents were likely provided to the second defendant by persons from the Liberal Party who were working against the plaintiff, possibly in concert;
(v)there was little evidence of the likely effect of disclosure on the sources or on anyone else - it is clear that if inspection is ordered nobody is going to lose their livelihood, go to gaol or be at risk of harm or violence, be deported or suffer any hardship; the defendants only point to some 'nebulous loss of trust and reputational damage' that may be suffered by the source; and
(vi)there has been 'misconduct' as defined within s 20K(1) of the Evidence Act.
The plaintiff argues that there has been misconduct by the second defendant and his sources. I refer to the allegations of misconduct in more detail later in these reasons. In summary the plaintiff contends:
(a)The second defendant deceived him in the course of the telephone conversation that preceded the publication of the 31 March 2016 Newspaper Article.
(b)The second defendant published the 1 April 2016 Newspaper Article in which the plaintiff's living arrangements were described without asking the plaintiff about them.
(c)The terms in which the articles were written demonstrated an 'inappropriate partiality' on the second defendant's part.
(d)The pre-selection application forms were confidential, internal Liberal Party documents and the provision of them to the media constituted a misuse of them by the source and the second defendant should have known and respected the confidential nature of the document but instead wrote a sensationalised, factually inaccurate article in circumstances where the truth was easily ascertainable. The plaintiff argues that the defendants and their sources should not have the benefit of confidentiality where they have not respected his confidence.
The plaintiff argues that if he had sent the letter to Curtis Brown he may have been liable to prosecution by the police for corruption under s 83 of the Criminal Code 1913 (WA) and that he would also have been answerable to a parliamentary standards committee as well as to the Liberal Party of WA. On that basis, he invokes s 20K(3)(b) of the Evidence Act which provides that generally a direction - to give identifying evidence - should be given if the information given to a journalist could have been provided to another person to deal with the concern in a way that did not constitute misconduct.
The plaintiff is critical of the second defendant's evidence that he does not know who delivered the envelope that he says was placed on his desk in about the last week of March 2016. The plaintiff contends that the statement appears 'carefully worded and less than candid and complete'. The plaintiff reinforces this contention by observing that the second defendant does not say that he does not know from whom the envelope originated or at whose direction it was delivered and neither does he disclose whether he had any prior or subsequent communications with anyone that would or might identify the person who sent them.
The plaintiff relies upon his submissions in respect of the protection provisions in answer to the defendants' reliance on the newspaper rule.
The newspaper rule - the relevant principles
It is a rule of practice at common law that a court will not order a media proprietor or its journalists to disclose the identity of a confidential source of information in a defamation or related action, at least at the interlocutory stage, unless disclosure is necessary in the interests of justice or other special circumstances exist.[8]
[8] West Australian Newspapers Ltd v Bond [2009] WASCA 127 [9] (Buss JA, with whom Owen JA and Wheeler JA agreed).
In West Australian Newspapers Ltd v Bond Buss JA (as his Honour then was) examined the authorities in which the nature, scope and application of the newspaper rule have been considered. His Honour identified eight important propositions that emerged from the authorities. Omitting the citations of authorities, his Honour stated the propositions in the following terms:[9]
First, the 'newspaper rule' exists for the protection or advancement of the public interest, and not the private interests of media proprietors or journalists.
Secondly, the rule only applies to the identity of the confidential source of information, and not to the information provided by the source to the media proprietor or its journalists.
Thirdly, the rule only applies in the context of a 'defamation or related action' or proceedings for 'defamation and, perhaps, other analogous actions'.
Fourthly, the court exercises a judicial discretion in deciding at an interlocutory stage of defamation and related actions whether to make or refuse an order which will, directly or indirectly, disclose the identity of a confidential source.
Fifthly, although it may be 'convenient' in the conduct of litigation for a party to the litigation to be informed, through the processes of discovery and inspection of relevant documents and the administration of interrogatories, of the identity of a confidential source, mere 'convenience' is not a sufficient reason, at the interlocutory stage, to dispense with the rule.
Sixthly, the mere relevance in pending proceedings of the identity of a confidential source to a fact in issue is not a sufficient reason, at the interlocutory stage, to dispense with the rule.
Seventhly, at the interlocutory stage of pending proceedings, disclosure of the identity of a confidential source, by means of discovery and inspection or interrogatories, will not be compelled unless it is 'necessary in the interests of justice' or other 'special circumstances' exist.
Eighthly, although the rule only arises, strictly speaking, in pending proceedings, it may also arise, in an analogous form, in an application for preliminary (or pre-action) discovery. (citations omitted)
[9] West Australian Newspapers Ltd v Bond [61] - [68].
Buss JA gave detailed consideration to the meaning of the expression 'necessary in the interests of justice'. His Honour expressed the opinion that:[10]
… the court will ordinarily, in the exercise of its discretion, refuse to order the disclosure of the identity of a confidential source, at the interlocutory stage of pending proceedings, unless it is satisfied that disclosure is really needed or there is a compelling reason for disclosure, at that time, to enable the issues at the trial to be properly and fairly determined as between the parties; for example, to enable the plaintiff to establish the elements of a cause of action alleged in the proceedings, or otherwise to do justice between the parties.
[10] West Australian Newspapers Ltd v Bond [87].
Buss JA gave guidance as to the factors that are to be taken into account in deciding whether, in the exercise of the court's discretion and at the interlocutory stage of pending proceedings, it is necessary in the interests of justice to require disclosure of a confidential source. Whilst recognising that the relevant factors will depend on the facts and circumstances of a particular case, his Honour said that ordinarily they will include the following:[11]
First, the common law's recognition in the 'newspaper rule' of the public interest in the free flow of information by the imposition of restraints on the disclosure of the identity of a media proprietor's or journalist's confidential source of information, at the interlocutory stage of defamation and related actions, notwithstanding the relevance of the identity of the source to the issues to be tried. Secondly, whether, in the particular case, the information which the source has revealed, on a confidential basis, appears to be a matter of genuine public interest, including whether the information discloses an iniquity. Thirdly, the manner in which the information was obtained, including whether it was obtained by lawful means. Fourthly, the pleadings in the pending proceedings, including the elements of the plaintiff's causes of action, any admissions by the defendant, and the apparent reasonableness or unreasonableness of any denials or non-admissions in the defence. Fifthly, the identity of the confidential source. Sixthly, whether any difficulty in proof as a result of the non-disclosure of the identity of the source is likely materially to complicate the trial or unduly to extend its length, to involve significant expense for the plaintiff (especially an indigent plaintiff or a plaintiff with limited financial resources) or to cause significant inconvenience to a proposed witness. Seventhly, the apparent importance to the plaintiff and generally of the rights which he or she seeks to vindicate in the pending proceedings.
[11] West Australian Newspapers Ltd v Bond [89].
The application of the newspaper rule - analysis and disposition
The newspaper rule and the disclosure of the identity of the source who delivered the letter to Curtis Brown and the extract from The Sky Warriors to the second defendant
Although the plaintiff's counsel was critical of the second defendant's evidence that he did not know the identity of the person who delivered to him the letter sent to Curtis Brown and the extract from The Sky Warriors, I accept that evidence. Thus, there is no relevant disclosure that the second defendant can make in respect of the source of those documents.
The newspaper rule and the disclosure of the identity of source A
The application of the newspaper rule involves balancing the competing considerations to which I refer below for the purposes of determining whether it is necessary in the interests of justice to require disclosure of a confidential source.
Public interest in the free flow of information
I recognise the public interest in the free flow of information to journalists by the imposition of restraints on the disclosure of the identity of a journalist's source. This aspect of the public interest has been recognised in the authorities and statutory recognition of it is to be found in the protection provisions.[12]
The plaintiff's interest in vindicating his reputation
[12] Evidence Act 1906 (WA) s 20J(2)(b)
The public interest in the free flow of information must be weighed against the considerable importance to the plaintiff of his right to vindicate his reputation in these proceedings. The plaintiff was a public figure and the defamatory imputations relied upon by him constitute serious attacks on his reputation which he contends severely damaged his prospects of being pre-selected and thereafter re-elected as a member of Federal Parliament.
The public interest in the fair and just administration of justice
An important aspect of the public interest is the plaintiff's right to a fair and just determination of his claim which ordinarily, that is, other than in defamation cases, would require disclosure of the identity of the defendants' sources prior to trial.
The public interest in disclosing where the plaintiff resided
I accept that there was a public interest in disclosing to the readers of the newspaper that the plaintiff did not reside within his electorate. Given that the plaintiff had applied for pre-selection and that the pre‑selection application form which, I infer, was provided to the pre‑selectors contained his home address, the public interest in this disclosure whilst genuine was not strong. In my judgment this is not a factor of great significance.
The manner in which the plaintiff's pre-selection form was obtained and the use made of it
The part of the 1 April Newspaper Article which used information derived from the plaintiffs' pre-selection application form read as follows:
…
His application for preselection, obtained by The Australian, lists his new residential address as Halls Head, a coastal area south of Perth.
…
The article went on to state that Dr Jensen's opponent for pre‑selection, Mr Morton, lived in Tangney with his wife and two young children, though, of course, this was not information derived from the plaintiff's pre-selection application.
The fact that the plaintiff had applied for pre-selection was not a confidential matter. I find, however, that pre-selection application forms completed by pre-selection candidates were treated as confidential by those involved in administering the pre-selection process within the Liberal Party in Western Australia. I infer that this was so from:
(a)Ms Webb's email to the plaintiff and Mr Morton on 23 March 2016;
(b)Ms Webb's email to 'Branch House of Representatives Selection Committee Delegates' on 24 March 2016; and
(c)Mr Cox's statement in the notice of meeting to delegates in advance of the pre-selection meeting to the effect that the candidate's dossiers and details of discussions at the pre‑selection meeting were 'strictly confidential'.
The pre-selection application form was in two parts. Part A contained the plaintiff's personal details, details of persons who could be contacted for references, details of the plaintiff's political activities, his educational and professional qualifications, his employment history, his 'general and community activities', his 'website and blogging activities' and a statement of his reasons for seeking pre‑selection. Part B was a 'Confidential Deed'. Much of the information in Part A of the plaintiff's pre‑selection application form was information likely to be in the public domain and lacked the 'necessary quality of confidence'[13] required to found an action in equity for breach of confidence.[14] Indeed, in relation to the plaintiff's place of residence, in the course of his oral submissions the plaintiff's counsel made a submission to the effect that the second defendant could have deduced from the plaintiff's Parliamentary Register of Interests that the plaintiff had in lived Halls Head since 2015.[15]
[13] Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1963] 1 All ER 413, 415.
[14] As to the matters that need to be established for an action for breach of confidence see the statement of principle in the joint reasons of Finn, Sundberg and Jacobson JJ in Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; (2010) 265 ALR 281 [39].
[15] ts 125.6.
The question of whether or not there has been a breach of confidence for which a remedy in equity might be available is not the issue. On the basis of the evidence presented on this application it is clear that the plaintiff's pre-selection application was provided to persons within the Liberal Party for the purposes of the pre-selection process. At this stage of the proceedings it appears probable that the application came into the possession of source A because source A was a member of the Liberal Party or was someone closely connected with a member. By providing the application to the second defendant, source A used the pre‑selection application for a purpose other than the limited purpose for which it had been provided by the plaintiff and for which it had been distributed within the Liberal Party. In short, the evidence supports the conclusion that by providing the plaintiff's pre‑selection application to the second defendant, source A misused it. The consequences of the misuse were, however, attenuated significantly because the only fact derived from the pre‑selection application used by the second defendant was that the plaintiff was living in Halls Head and this was not a confidential matter.
The fact that a source misuses information by providing it to a journalist whether in breach of confidence or otherwise is not, of itself, a reason not to preserve the confidentiality of a journalist's source - that this is so has been acknowledged in the authorities. [16]
[16] British Steel Corporation v Granada Television Ltd [1981] AC 1096 (1129) Denning MR. The principle stated by Denning MR in the passage cited was not accepted by the House of Lords but the acknowledgment of the Master of the Rolls that much information gathered by the media is information disclosed by sources in breach of confidences and that disclosing the identity of sources who have breached confidences would inhibit the disclosure of information to the media remains valid. Lord Salmond agreed with Denning MR's observations (1189).
In my judgment, the probable misuse by source A of the plaintiff's pre‑selection application is a factor that provides marginal support for ordering disclosure of the identity of source A but it is not a decisive factor as it does not bear directly on the issue of whether it is necessary in the interests of justice for the identity of the sources to be disclosed.
The significance of the identity of source A for the purpose of the pleaded issues
The pleaded issues must be considered in the context of the provisions of the statutory defence and the legal principles that govern the implied constitutional freedom of communication on matters of government and politics.
The statutory defence of qualified privilege
The statutory defence of qualified privilege is found in s 30 of the Defamation Act 2005 (WA) which states:
30.Defence of qualified privilege for provision of certain information
(1)There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that -
(a)the recipient has an interest or apparent interest in having information on some subject;
(b)the matter is published to the recipient in the course of giving to the recipient information on that subject; and
(c)the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2)For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3)In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account -
(a)the extent to which the matter published is of public interest;
(b) the extent to which the matter published relates to the performance of the public functions or activities of the person;
(c)the seriousness of any defamatory imputation carried by the matter published;
(d)the extent to which the matter published distinguishes between suspicions, allegations and proven facts;
(e)whether it was in the public interest in the circumstances for the matter published to be published expeditiously;
(f)the nature of the business environment in which the defendant operates;
(g)the sources of the information in the matter published and the integrity of those sources;
(h)whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person;
(i)any other steps taken to verify the information in the matter published; and
(j)any other circumstances that the court considers relevant.
(4)For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.
(5)However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.
The common law qualified privilege defence based on the implied constitutional freedom of communication on matters of government and politics
In Lange v Australian Broadcasting Corporation the High Court declared that:[17]
… each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter. It may be that, in some respects, the common law defence as so extended goes beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution. For example, discussion of matters concerning the United Nations or other countries may be protected by the extended defence of qualified privilege, even if those discussions cannot illuminate the choice for electors at federal elections or in amending the Constitution or cannot throw light on the administration of federal government.
And
Having regard to the interest that the members of the Australian community have in receiving information on government and political matters that affect them, the reputations of those defamed by widespread publications will be adequately protected by requiring the publisher to prove reasonableness of conduct. The protection of those reputations will be further enhanced by the requirement that the defence will be defeated if the person defamed proves that the publication was actuated by common law malice to the extent that the elements of malice are not covered under the rubric of reasonableness. In the context of the extended defence of qualified privilege in its application to communications with respect to political matters, 'actuated by malice' is to be understood as signifying a publication made not for the purpose of communicating government or political information or ideas, but for some improper purpose.
[17] Lange v Australian Broadcasting Corporation (571).
Having regard to the subject matter of government and politics the High Court held that the motive of causing political damage to the plaintiff or the plaintiff's party could not be regarded as improper.[18]
[18] Lange v Australian Broadcasting Corporation (574).
The High Court held that a defendant's conduct in publishing material will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. The defendant's conduct will not be reasonable unless the defendant had sought a response from the person defamed and published the response made, if any, except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.[19]
The relevant pleadings
The plaintiff's defamatory imputations
[19] Lange v Australian Broadcasting Corporation (574).
The plaintiff alleges that the following imputations were conveyed by the 31 March 2016 Newspaper Article:
(a)the plaintiff is a hypocritical purveyor of smut; and
(b)he improperly exploited his position as a Federal Member of Parliament by using his parliamentary letterhead to seek to obtain a personal financial benefit, namely a publishing deal for his book, The Sky Warriors.[20]
[20] Statement of claim par 6.
The plaintiff alleges that the following imputations were conveyed by the 1 April 2016 Newspaper Article:[21]
(a)by leaving the family home to live with his new girlfriend, the plaintiff is a person devoid of the family values expected of a member of Parliament;
(b)by leaving the family home to live with his new girlfriend, the plaintiff is a person devoid of the high moral standard expected of a member of Parliament;
(c)by abandoning his electorate to live in Halls Head, the plaintiff failed to act in the best interests of persons residing in the division of Tangney for whom the plaintiff was elected to represent; and
(d)the plaintiff improperly exploited his position as a Federal Member of Parliament by using his parliamentary letterhead to seek to obtain a personal financial benefit, namely a publishing deal for his book, The Sky Warriors.
[21] Statement of claim par 21.
The plaintiff pleads 30 matters in support of a claim for aggravated damages. Only two of those matters are presently relevant. First, the plaintiff pleads that the second defendant wrote an article that was published in The Australian on 8 April 2016 which referred to and quoted from Dr Hoad's letter to the pre-selectors.[22] Second, on 11 August 2017 the second defendant 'co-wrote' an article published in The Australian which referred to the plaintiff's 26 July 2017 email to members of the Liberal Party in which he sought to persuade them to support a different political party.[23]
The plaintiff's reply to the qualified privilege defences
[22] Plaintiff's Third Amended Statement of Claim 4 July 2018 [40.15]
[23] Plaintiff's Third Amended Statement of Claim 4 July 2018 [40.19]
The defendants do not plead the reliability or integrity of the confidential sources for the purposes of their qualified privilege defences.
It is the plaintiff who raises the issue of the reliability and integrity of the defendants' sources. In his second amended reply and defence to counterclaim the plaintiff denies that the defendants' conduct in publishing the articles was reasonable in the circumstances.[24] In relation to the 31 March Newspaper Article, the plaintiff pleads as follows:
[24] Second Amended Reply and Defence to Counterclaim 6 September 2018
3.As to paragraph 45(f) of the Defence, Dr Jensen denies that the Defendants' conduct in publishing the 31 March Publications was reasonable in the circumstances, given:
3.1the 31 March Publications did not contain the substance of Dr Jensen's side of the story; and
3.2no reasonable attempt was made by the Defendants to obtain and publish a response from Dr Jensen; and
Particulars
…
…
3.3the defendants' source of the Letter[25] and 3 pages of the book, The Sky Warriors, which documents formed the subject matter of the 31 March Publications, was a member of the Liberal Party;
[25] Defined in earlier paragraphs of the pleading as the plaintiff's letter to Ms Gutteriez of Curtis Brown.
Particulars
The precise identity of the defendants' source is presently unknown to Dr Jensen but may be inferred from:
3.3.1the fact that the only persons who could have known about or had access to the Letter and the book were persons staffing Dr Jensen's Parliamentary office who were members the Liberal Party;
3.3.2the timing of the defendants' source providing the Letter and the 3 pages of the book to the defendants, a national media organisation and a political journalist:
(a)in about March 2016, almost 9 years after the date of the Letter; and
(b)immediately prior to the Liberal Party pre-selection ballot for the selection of the Liberal Party candidate for the seat of Tangney on 3 April 2016;
3.3.3the fact that Liberal Party pre-selection application forms, which are treated as confidential by the applicants, the State Executive of the Liberal Party and the pre selectors (each of whom were Liberal Party members), were also provided to the defendants at about the time of the Liberal Party pre selection ballot for the division of Tangney, namely:
(a)Mr Morton's pre-selection application form sent by Mr Morton to the Liberal Party on about 15 March 2016, which was provided to the defendants by 31 March 2016; and
(b)Dr Jensen's pre-selection application form sent by Dr Jensen to the Liberal Party on about 21 March 2016, which was provided to the defendants by 31 March 2016
(which application forms appear to have formed the basis for parts of the 1 April Publications);
3.3.4the fact that a letter from Dr Trudy Hoad (now Jensen) to pre-selectors in about March 2016 was provided to the defendants between 4 and 8 April 2016 (inclusive of those dates) (and formed the basis for the defendants' article pleaded in paragraph 40.15 of the Statement of Claim);
3.3.5the fact that at least one of Dr Jensen's emails to members of the Liberal Party on 26 July 2017, were provided to the defendants in about August 2017 (and formed the basis for the defendants' article pleaded in paragraph 40.19 of the Statement of Claim).
Further particulars may be provided following further discovery and inspection being given, the issue of subpoenas, the exchange of witness statements, the administering of interrogatories and in any event prior to trial.
3.4the defendants' source of the Letter and 3 pages of the book was unreliable and lacking in integrity for the purposes of publishing articles of and concerning Dr Jensen, given:
…
3.4.the defendants' source providing to the defendants the Letter, the 3 pages of the book and the documents referred to in paragraphs 3.3.3 to 3.3.5 hereof,
from which it may be inferred that the defendants' source's intention in providing the Letter and the 3 pages of the book to the defendants was to cause political damage to Dr Jensen for the benefit of Mr Morton;
3.5the defendants knew the identity of the source of the Letter and 3 pages of the book.
…
The plaintiff relies, amongst other matters, upon the matters pleaded in pars 3.3 to 3.5 to establish malice on the part of the defendants.[26]
[26] Par 4.3.8 of the second amended reply and defence to counterclaim.
The plaintiff's reply to the qualified privilege defence in respect of the 1 April 2016 Newspaper Article is pleaded as follows:
6.As to paragraph 45(f) of the Defence, Dr Jensen denies that the Defendants' conduct in publishing the 31 March Publications was reasonable in the circumstances, given:
6.1the 31 March Publications did not contain the substance of Dr Jensen's side of the story; and
6.2no reasonable attempt was made by the Defendants to obtain and publish a response from Dr Jensen; and
Particulars
…
6.3the defendants' source of Dr Jensen's and Mr Morton's pre selection application forms, which appear to have formed the basis for parts of the 1 April Publications, was a member of the Liberal Party.
Particulars
The precise identity of the defendants' source is presently unknown to Dr Jensen but may be inferred from the matters pleaded in paragraph 3.3.3 hereof.
…
6.4the defendants' source of the pre-selection application forms was unreliable and lacking in integrity for the purposes of publishing articles of and concerning Dr Jensen, given:
6.4.1the source's membership of the Liberal Party;
6.4.2the confidential nature of the pre selection application forms;
6.4.3the source provided the pre selection application forms to the defendants, a national media organisation and a political journalist;
6.4.4both Dr Jensen's and Mr Morton's pre selection application forms, as opposed to only Dr Jensen's pre selection application form, were provided to the defendants;
6.4.5the source provided to the defendants the Letter, the 3 pages of the book and the pre selection application forms:
(a)at or about the same time; and
(b)immediately prior to the Liberal Party pre selection ballot for the selection of the Liberal Party candidate for the seat of Tangney on 3 April 2016;
6.5.6the defendants' source provided to the defendants the Letter, the 3 pages of the book and the pre-selection application forms and the documents referred to in paragraphs 3.3.4 to 3.3.5 hereof,
from which it may be inferred that the defendants' source's intention in providing the pre-selection application forms to the defendants was to cause political damage to Dr Jensen for the benefit of Mr Morton; and
6.5the defendants knew the identity of the source of the pre selection application forms.
…
The plaintiff relies, amongst other matters, upon the matters pleaded in par 6.3 to par 6.5 in support of his plea that the articles were published maliciously.[27]
The significance of the identity of source A for the plaintiff's reply to the qualified privilege defences
[27] Par 7.4 of the second amended reply and defence to counterclaim.
As a preliminary observation, the fact that the defendants do not rely on the reliability or integrity of their sources weighs against the disclosure of the identity of source A.
The identity of source A is not relevant to the establishment of the plaintiff's cause of action. In the context of the plaintiff's action, the issue arises because of the plaintiff's reply to the defendants' qualified privilege defence - specifically whether the defendants' conduct in publishing the 1 April Newspaper Article was reasonable.
The essential elements of the allegations made by the plaintiff in the reply concerning the source of the pre-selection application forms are as follows:
(a)The source was a member of the Liberal Party.[28]
(b)The source was unreliable and lacking in integrity for the purpose of publishing articles of and concerning the [plaintiff], because, amongst other reasons, it may be inferred that the second defendant's sources' intention in providing the pre‑selection application forms was to cause political damage to the plaintiff for the benefit of Mr Morton.[29]
(c)The defendants knew the identity of the source.[30]
[28] Par 6.3 - second amended reply and defence to counterclaim.
[29] Par 6.4 - second amended reply and defence to counterclaim.
[30] Par 6.5 - second amended reply and defence to counterclaim.
I acknowledge that disclosure of the identity of source A is likely to enable the plaintiff to prove whether or not source A was a member of the Liberal Party - in this respect, disclosure of the identity has that probative value.
In the context of the application of the newspaper rule there is no material difference between the considerations bearing on reasonableness of the defendants' conduct for the purposes of the statutory qualified privilege defence and those considerations that bear on the reasonableness of their conduct for the extended common law qualified privilege defence.
In my assessment the identity of the source A is not central to the issue of whether the defendants' conduct in publishing the 1 April Newspaper Article was reasonable. Source A's identity is not determinative of that issue and, in my view, it is of limited significance.
In the context of the qualified privilege defences the identity of source A has potential relevance to two matters: first, whether source A was motivated by a desire to diminish the political standing of the plaintiff and advance the prospects of Mr Morton and, second, whether source A was 'unreliable and lacking in integrity'.
I accept the defendants' submission to the effect that there is nothing inherently unreasonable in publishing an article about a politician using information provided by a political opponent who is motivated by a desire to diminish the political standing of the politician who is the subject of the story and to promote the standing of a rival. To hold otherwise would be to impose a very significant restriction on the reporting of political affairs. Reporting on the rivalry between competitors in the political arena based on information provided by those competitors, or people associated with them, in the expectation that it may damage the political prospects of a competitor is the standard fare of political journalists. Thus even if one assumes that source A was a member of the Liberal Party who wished to undermine the plaintiff and promote Mr Morton - more colourfully referred to in the plaintiff's counsel's oral submissions as a 'political backstabbing exercise'[31] - in my assessment, this would not materially strengthen the plaintiff's reply to the qualified privilege defence. Source A's motives and the defendants' motives are to be assessed separately. Source A's motives are not to be equated with or imputed to the defendants.
[31] ts 126.10.
Put in different terms, the issue of the identity of source A arises in the context of an element of the plaintiff's reply to the qualified privilege defence that is inherently weak. In my assessment of the relative significance of the various elements of the plaintiff's reply on the issue of the reasonableness of the defendants' conduct, the allegations made by the plaintiff to the effect that the 1 April Newspaper Article did not contain the substance of the plaintiff's side of the story, and that no reasonable attempt was made by the defendants to obtain and publish a response from the plaintiff, are factors with much greater weight than the identity of source A and whether he or she was a member of the Liberal Party.
In expressing this view, I do not overlook that one of the factors specified in s 30 of the Defamation Act that the court may take into account when determining the reasonableness of the conduct of a defendant in publishing a matter is '[t]he sources of information contained in a matter published and the integrity of the sources'.[32] By using the word 'integrity' the statute directs the court's attention to whether the source is 'reputable or sound and of moral principle', not whether the particular information provided by the source in the particular instance may be inaccurate.[33] The significance to be attached to the integrity of the source will vary according to the circumstances of the case, in particular, it will depend on the relation between the integrity of the source and the information provided. Where the accuracy or veracity of the information provided by a source is questionable, the identity and integrity of the source may be of greater relevance to the reasonableness of a defendant's conduct in publishing that information. As the defendants emphasised in their submissions in the present case, it is not contended by the plaintiff that the information provided by the source on which statements contained in the 1 April Newspaper Article are based was inaccurate - there is no contention that the document provided by source A to the second defendant was not a true copy of the plaintiff's pre selection application. Thus, in my judgment, whilst the integrity of the source is not irrelevant, it is a factor of limited weight in the assessment of the reasonableness of the defendants' conduct in publishing the 1 April Newspaper Article. It is not a factor of such importance that compels the conclusion that disclosure of source A's identity is necessary in the interests of justice.
Will non-disclosure of source A's identity give rise to difficulties of proof or complicate or extend the trial?
[32] Defamation Act 2005 (WA) s 30(3)(g).
[33] LVMH Watch & Jewellery Australia Pty Ltd v Michael Lassanah [2011] NSWCA 370, [130] (Bergin CJ in Eq, Giles and Campbell JJA agreeing).
The non-disclosure of source A's identity would deny the plaintiff direct evidence that source A was a member of the Liberal Party. I have, however, already referred to the facts from which an inference arises that source A was either a member of the Liberal Party or someone closely associated with the Liberal Party. On the basis of the materials presently before me, I do not think that it is necessary to rely on the assistance of Jones v Dunkel[34] reasoning to draw such an inference albeit that such reasoning, if it is open to the jury to rely on it, may make it easier to draw the inference. I do not consider that the absence of direct evidence of the identity of source A will cause insuperable difficulties with proof, complicate the trial or extend its duration. While I make these observations in the context of a consideration of the qualified privilege defences, they apply with equal force to the plaintiff's defence of the second defendant's counterclaim, the topic to which I now turn.
The significance of source A's identity for the plaintiff's defence to the counterclaim
The second defendant's defamatory imputations
[34] Jones v Dunkel (1959) 101 CLR 298
The second defendant alleges the following imputations arise from the ABC and 6PR broadcasts:
(a)he acted contrary to his professional duty as a journalist by failing to contact or even [trying] to contact the plaintiff prior to writing an article about him;
(b)he acted unprofessionally by writing an article about the plaintiff with reckless disregard to its truth or falsity, being motivated by serving the political objects of others in damaging the plaintiff rather than a legitimate journalistic purpose.
These imputations are pleaded as 'false innuendos' and in the alternative as 'true innuendos'.
The plaintiff's defences to the second defendant's counterclaim
The plaintiff's defences include qualified privilege, the defences of truth at common law and the statutory defence of justification.[35]
[35] Defamation Act 2005 (WA) s 25.
The potential relevance of the identity of source A lies in the justification by the plaintiff of that part of the imputation that the second defendant was 'motivated by serving the political objects of others in damaging [the plaintiff], rather than a legitimate journalistic purpose'. Whilst the identity of source A is unknown, in the context of this case, there is no serious issue as to whose 'political objects' it is that the second defendant may be understood to have been motivated to serve - they were the political objects of those who opposed the plaintiff's pre-selection and supported the pre-selection of Mr Morton. The relevant sting lies in the assertion that the second defendant had such an ulterior motivation ‑ not in the identity of those whose interests he was allegedly motivated to serve. In any event, given that the 'others' could only be the plaintiff's political opponents and supporters of Mr Morton, I am not persuaded that the disclosure of the identity of source A is 'really needed' by the plaintiff in order to make good his justification defences to the second defendant's claim.
The newspaper rule and the disclosure of the identity of source B
Source B provided the second defendant with a copy of the first page of Dr Hoad's letter to various members of the Liberal Party sent as part of the plaintiff's pre-selection campaign.
On 8 April 2016 the first defendant published an article in The Australian, written by the second defendant, which referred to Dr Hoad's letter and contained quotes from it. There is no evidence that Dr Hoad sent the letter on the express basis that it was to be kept confidential by those to whom it was sent. The publication of the 8 April 2016 article is relied upon by the plaintiffs as conduct that is said to aggravate the plaintiff's hurt, damage and distress.[36] In this respect, however, it is the publication of the 8 April 2016 article containing quotes from the letter that is relevant, not the identity of source B. In the context of the aggravated damages plea, the identity of the source is not probative of any relevant fact.
[36] Third amended statement of claim 4 July 2018 [40.15].
The plaintiff relies on the disclosure of Dr Hoad's letter for two other purposes in the context of his rebuttal of the qualified privilege defences. First, it is relied upon as one of the particulars from which the plaintiff contends it may be inferred that the source of the extract from The Sky Warriors and the letter to Curtis Brown and the source of the pre‑selection application forms was a member of the Liberal Party who was 'unreliable and lacking in integrity'.[37] In this respect, for the reasons given in relation to the identification of source A, I am not satisfied that it is necessary in the interests of justice for the identity of source B to be disclosed. Secondly, the plaintiff relies upon the publication of the 8 April 2016 article as a matter from which malice may be inferred.[38] It is, however, the fact of publication and the content of the article that is relevant to the malice plea and the identity of source B is not probative of any relevant fact.
[37] Second amended reply and defence to counterclaim 3.3.4, 3.4, 6.3 and 6.4.5.
[38] Second amended reply and defence to counterclaim 4.3.6, 4.3.7.
In my judgment, it is not necessary in the interests of justice for the identity of source B to be disclosed to the plaintiff. In reaching this conclusion in addition to the matters referred to in the preceding two paragraphs, I have had regard to the matters of general application to which I have referred when considering the issue of the disclosure of source A's identity.
The newspaper rule and the disclosure of the identity of source C
Source C forwarded the plaintiff's email of 26 July 2017 to the second defendant. On 11 August 2017 the first defendant published an article in The Australian, co-written by the second defendant, in which reference was made to the plaintiff's email. The publication of the 11 August 2017 article is relied upon by the plaintiffs as conduct that is said to aggravate the plaintiff's hurt, damage and distress.[39] In this respect, however, it is the publication of the 11 August 2017 article that is relevant, not the identity of source C. The plaintiff also relies on the publication of the 11 August 2017 article as a matter from which malice may be inferred but, once again, it is the publication of the article rather than the identity of the source that is relevant. In my judgment, it is not necessary in the interests of justice for the identity of source C to be disclosed to the plaintiff.
[39] Third amended statement of claim 4 July 2018 [40.15].
The protection provisions - the statutory regime
Section 20G of the Evidence Act defines the terms used in the protection provisions - s 20H to s 20M.
Section 20H contains provisions which govern the application of the protection provisions. It states:
20H.Application of protection provisions (journalists)
(1)The protection provisions (journalists) do not apply in relation to a proceeding the hearing of which began before the commencement of those provisions.
(2)The protection provisions (journalists) apply in relation to information given by an informant whether given before or after the commencement of those provisions.
(3)The protection provisions (journalists) apply to a person acting judicially in any proceeding even if the law by which the person has authority to hear, receive, and examine evidence provides that this Act does not apply to the proceeding.
(4)The protection provisions (journalists) are not intended to exclude or limit the operation of section 5 or the power that a person acting judicially has under any other law of the State to take any action if it is in the interests of justice to do so.
For the purposes of this application, the centrally important provisions are s 20I, s 20J and s 20K. They state:
20I.Protection of identity of informants
If a journalist has promised an informant not to disclose the informant's identity, neither the journalist nor a person for whom the journalist was working at the time of the promise is compellable to give evidence that would disclose the identity of the informant or enable that identity to be ascertained (identifying evidence).
20J.Direction to give identifying evidence
(1)Despite section 20I, a person acting judicially may direct a person referred to in that section to give identifying evidence.
(2)A person acting judicially may give a direction only if satisfied that, having regard to the issues to be determined in the proceeding, the public interest in the disclosure of the identity of the informant outweighs -
(a)any likely adverse effect of the disclosure of the identity on the informant or any other person; and
(b)the public interest in the communication of facts and opinions to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.
(3)Without limiting the matters that a person acting judicially may have regard to for the purposes of this section, the person acting judicially must have regard to the following matters -
(a)the probative value of the identifying evidence in the proceeding;
(b)the importance of the identifying evidence in the proceeding;
(c)the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding;
(d)the availability of any other evidence concerning the matters to which the identifying evidence relates;
(e)the likely effect of the identifying evidence, including the likelihood of harm, and the nature and extent of harm that would be caused to the informant or any other person;
(f)the means, including any ancillary orders that may be made under section 20M, available to the person acting judicially to limit the harm or extent of the harm that is likely to be caused if the identifying evidence is given;
(g)the likely effect of the identifying evidence in relation to -
(i)a prosecution that has commenced but has not been finalised; or
(ii)an investigation, of which the person acting judicially is aware, into whether or not an offence has been committed;
(h)whether the substance of the identifying evidence has already been disclosed by the informant or any other person;
(i)the risk to national security or to the security of the State;
(j)whether or not there was misconduct, as defined in section 20K(1), on the part of the informant or the journalist in relation to obtaining, using, giving or receiving information.
(4)A person acting judicially must state the person's reasons for giving or refusing to give a direction.
20K.Effect of misconduct as to directions
(1)In this section -
misconduct, in relation to an informant or a journalist, includes any of the following -
(a)an offence committed by the informant or journalist;
(b)an act or omission on the part of the informant or journalist that renders him or her liable to a civil penalty;
(c)deceit, dishonesty, inappropriate partiality or a breach of trust on the part of the informant or journalist;
(d)the informant or journalist acting corruptly, or corruptly failing to act, in any capacity;
(e)the informant or journalist corruptly taking advantage of his or her position to obtain a benefit for himself, herself or another person or to cause a detriment to another person;
(f)the informant or journalist engaging in conduct that adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of any person in any capacity;
(g)misuse, on the part of the informant or journalist, of information or material that he or she has acquired in any capacity, whether the misuse is to obtain a benefit for himself, herself or another person or to cause a detriment to another person;
(h)conduct providing reasonable grounds for the termination of the informant or journalist's employment;
(i)conduct providing reasonable grounds for disciplining the informant or journalist in relation to unsatisfactory professional conduct or professional misconduct, or the breach of a professional standard, in relation to the informant or journalist's profession, whether or not he or she is a member of the body that prescribed the standard.
(2)A person acting judicially who finds that there was misconduct on the part of an informant or a journalist in relation to obtaining, using, giving or receiving information -
(a)may, but is not bound to, give a direction; and
(b)must have regard to the principles set out in subsection (3) when deciding whether or not to give a direction.
(3)The principles mentioned in subsection (2)(b) are as follows -
(a)that generally a direction should be given if -
(i)the misconduct was the commission of an offence under The Criminal Code section 81 or a breach of a public sector standard, code of conduct or code of ethics, as those terms are defined in the Public Sector Management Act 1994 section 3(1); and
(ii)the offence or breach concerned the disclosure of information that was public interest information as defined in the Public Interest Disclosure Act 2003 section 3(1); and
(iii) the information could have been, but was not, disclosed in accordance with the Public Interest Disclosure Act 2003;
(b)that generally a direction should be given if the information given to a journalist could have been provided, in a way that did not constitute misconduct, to another person to deal with the concern;
(c)that generally a direction should be given if the information given to a journalist could have been obtained by the journalist under the Freedom of Information Act 1992 or by other lawful means;
(d)that generally a direction should be given if the misconduct involved a breach of privacy that was not warranted in the circumstances, having regard to the value to be attached to -
(i)the privacy of information regarding private citizens generally; or
(ii)the privacy of information regarding matters which may be commercial in confidence; or
(iii)the principle of Cabinet confidentiality; or
(iv)the principle of public interest immunity;
(e)that generally a direction should be given if a communication made to a journalist, if published, would give rise to a risk to national security or to the security of the State;
(f)that it is otherwise in the public interest to give or refuse to give a direction.
(4)For the purposes of this section, if the misconduct is a fact in issue and there are reasonable grounds for believing that there was misconduct on the part of the informant or the journalist in relation to obtaining, using, giving or receiving information, the person acting judicially in the proceeding may so find.
Section 20L provides that the protection provisions do not prevent the giving or adducing of identifying evidence with the informant's consent. Section 20M confers a discretion on 'the person acting judicially' to take steps to limit the possible harm, or the extent of the harm, likely to be caused by identifying evidence by ordering that all or part of the evidence be heard in camera or by making suppression orders.
In the Second Reading speech for the Evidence and Public Interest Disclosure Amendment Legislation Bill 2011 the following description of the protection provisions and their origins was given:
The second protection that the bill provides is exclusively for journalists. Although the PCRP provisions can apply to journalists, the bill also introduces a unique protection for journalists' sources that recognises the fact that a source may often wish to remain anonymous in return for providing information to a journalist. … The new journalist protection provisions strengthen the capacity for journalists to maintain the anonymity of their sources by introducing a presumption that a journalist is not compellable to give identifying evidence when they have promised not to disclose the identity of their source. As with the PCRP provisions, however, the protection afforded to journalists is a qualified protection. The public interest in the free flow of information and news must always be balanced against the public interest in courts and tribunals being properly informed of all matters that could legitimately affect their decisions …
…
I would like to draw two further matters to the attention of members before moving to address the reforms that the bill introduces to the Public Interest Disclosure Act 2003 ...
The second matter of note is the expansive misconduct provisions adopted in the bill. Under the journalist protection provisions, misconduct is a matter that a person acting judicially must consider when determining whether or not to give a direction. … Second, under the journalist protection provisions, a finding of misconduct does not automatically preclude the journalist protection provisions from applying. A person acting judicially instead retains the discretion to direct that identifying evidence be given. To assist with the exercise of this discretion, the bill outlines a series of principles that, if satisfied, generally require a person acting judicially to direct that evidence be given. In the event that misconduct is a fact in issue, a person acting judicially may make a finding as to misconduct when there are reasonable grounds for believing that there was misconduct by an informant or journalist in relation to the obtaining, using, giving or receiving of information.
This final feature is a further example of the delicate balance that the bill attempts to preserve - that is, the balance between the public interest in assisting journalists to disseminate information about matters of public interest and the public interest in ensuring that justice is done and that courts, tribunals and inquiries are properly informed of matters that could legitimately affect their decisions. This balance is ultimately weighted in favour of the need to ensure that decision makers have access to all relevant evidence, as the bill preserves the inherent discretion of a decision maker to take action if it is in the interests of justice to do so.
In contrast to the equivalent provisions in legislation in other States - on which the protection provisions were modelled - the protection provisions do not expressly state that they apply to interlocutory processes.
The protection provisions - the authorities
The only case in which the protection provisions (journalists) have been considered in Western Australia is Hancock Prospecting Pty Ltd v Hancock.[40] In Hancock Prospecting Pritchard J (as her Honour then was) considered the protection provisions in the context of subpoenas that had been issued to a journalist for the production of documents. Her Honour noted that, in contradistinction to the New South Wales and Commonwealth provisions, there was no provision in the Evidence Act indicating that the protection provisions were to be applied in relation to the production of documents under a subpoena. Pritchard J accepted the submission made on behalf of the journalist to whom the subpoena had been addressed that the identifying information of the kind contained in the relevant documents would almost certainly not be ordered in the substantive proceedings so that it amounted to an abuse of process to seek those documents by way of preliminary proceedings. Pritchard J gave the protection provisions (journalists) a beneficial interpretation, stating:
The enactment of the Shield Laws means that the confidentiality of information provided to journalists by informants is no longer (if it ever was) a matter of purely private interests, but is now recognised as a strong public interest, which may outweigh other public interests which apply in relation to the production of documents for the purposes of litigation.
[40] Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290.
Provisions which are very similar to the protection provisions in the Evidence Act are to be found in the Evidence Act 2008 (Vic)[41]. The Victorian provisions were considered by John Dixon J in Madafferi.
[41] Evidence Act 2008 (Vic) s 102J(1) - s 126K(1).
In Madafferi the plaintiff claimed that he was defamed by imputations conveyed in a number of newspaper articles. The imputations alleged were that the articles conveyed that the plaintiff had been guilty of violent criminal conduct, including murder, extortion and drug trafficking, and that the plaintiff was the head of the mafia in Melbourne. The defendants pleaded qualified privilege defences, being the statutory defence, and the common law qualified privilege defence based on the implied constitutional freedom of communication on matters of government and politics. The defendants' qualified privilege defence relied in part upon confidential sources. John Dixon J rejected the plaintiff's submissions that the confidential sources were the key to the defendants' qualified privilege defence. His Honour held that the references in the articles to confidential sources were not prominent but were to be considered a 'thread in the fabric of the qualified privilege defence, along with identified sources and proven facts, assertions of careful adherence to prudent journalistic practice and the ethical code, and the public interest.'[42]
[42] Madafferi v The Age [133].
Although John Dixon J considered that the defence did put in issue the integrity or apparent integrity of the sources, he was satisfied that in addressing whether the publication was reasonable in the public interest, the identity of the sources was not the critical matter. His Honour declined to order the defendants to disclose their sources. In the course of his reasoning, John Dixon J identified a key question as 'the extent to which the plaintiff is constrained in testing its strength of the qualified privilege defences if confidentiality is maintained.'[43] His Honour observed that the answer to that question was critical in determining the weight or degree of the public interest that favours disclosure.
[43] Madafferi v The Age [91].
John Dixon J identified that 'whether a successful claim of privilege provides a sufficient basis to exclude Jones v Dunkel reasoning because a party or witness has failed to give evidence or an explanation that, on the question of reasonableness of publication, it could be expected to give' as being an issue that may affect a court's assessment of the degree of interference with the public interest in the administration of justice that is occasioned by non‑disclosure. His Honour posed the question that if Jones v Dunkel reasoning is available to the plaintiff at trial, to what extent would such reasoning ameliorate the adverse consequences of non-disclosure. His Honour did not determine the question but observed that the plaintiff's ability to use Jones v Dunkel reasoning would be a factor that lessened the degree to which the public interest in the disclosure of the identity of the sources was adversely affected by the privilege.
The application of the protection provisions
Do the protection provisions apply to interlocutory processes?
In the light of the conclusions that I have reached regarding the newspaper rule, it is unnecessary for me to reach a conclusion on the issue of whether the protection provisions apply to discovery, inspection and interrogatories.
In the analysis that follows I have considered whether, on the evidence presented to the court on this application, the protection provisions would apply to prevent the defendants from being compelled to disclose the identity of their confidential sources at trial.
Were the sources 'informants' within the meaning of s 20G of the Evidence Act?
'Informant' is defined to mean 'a person who gives information to a journalist in the normal course of the journalist's work in the expectation that the information may be published in a news medium' and the term 'proceeding' does not include a proceeding before either House of Parliament or a Committee of either House, or both Houses of Parliament, in which evidence is or may be given.
In support of his submission that the sources were not informants, the plaintiff relies on the absence of any evidence that the sources gave information to the second defendant 'in the expectation' that the information provided by them would be published. In my judgment, ordinarily when a person provides information to a journalist it may be inferred that the expectation of that person will be that the information will be published in a news medium. Of course, there may be unusual circumstances in which such an inference does not arise. In this case, however, on the basis of the second defendant's account of his dealings with sources A, B and C, I infer that they provided the plaintiff's pre‑selection application form, Dr Hoad's letter and Dr Jensen's 26 July 2017 email respectively to the second defendant in the expectation that he would publish information contained in those documents in the newspaper.
Did the second defendant promise the sources not to disclose their identity?
I have set out the second defendant's evidence on this issue earlier in these reasons. I am satisfied that the words spoken by the second defendant to each source conveyed a promise by him not to disclose their identities.
Should the discretion to give a direction under s 20J(2) be exercised?
The plaintiff contends that the defendants should be directed to disclose the identity of the sources because the public interest in disclosure outweighs:
(a)any likely adverse effect of the disclosure on the informants; and
(b)the public interest in the communication of facts and opinions to the public by the news media and the ability of the news media to access sources of facts.[44]
The balancing exercise
[44] Evidence Act 1906 (WA) s 20J(2).
Section 20J(3) of the Evidence Act specifies the matters that the court must have regard to for the purposes of balancing the competing considerations. In the following paragraphs I address the matters that are relevant in the context of this case.
(a)The probative value of the identifying evidence: As recorded earlier in these reasons, I accept that disclosing the identity of source A is likely to prove whether or not source A was a member of the Liberal Party. I do not accept that the identities of sources B and C are probative of facts in issue in the proceedings.
(b)The importance of the identifying evidence in the proceeding: For the reasons given when discussing the application of the newspaper rule I do not consider that the identity of source A is material in the context of the plaintiff's rebuttal of the qualified privilege defences or in the context of his justification defences to the second defendant's claim. Again for the reasons already given, I do not consider that the identities of sources B and C are material.
(c)The nature and gravity of the cause of action or defence and the nature of the subject matter of the actions: The plaintiff's claim and the second defendant's counterclaim involve serious issues and the actions provide an opportunity for each party to vindicate his reputation. This is a significant factor that calls for careful consideration of whether a direction should be made.
(d)The availability of any other evidence concerning the matters to which the identifying evidence relates: There is circumstantial evidence that each of the sources is a member of the Liberal Party or a person closely associated with the Liberal Party and that the sources are likely to be aligned with political opponents of the plaintiff who supported the pre-selection of Mr Morton. The existence of this evidence weighs against the giving of a direction.
(e)The likely effect of the identifying evidence, including the likelihood of harm, and the nature and extent of harm that would be caused to the informant or any other person: The most likely and in my view most significant, effect of the identifying evidence is that it would discourage members of the community from providing information on a confidential basis to journalists in general. Thus, in my view, disclosure would undermine the public interest in the communication of facts and opinions by the public to news media. I am also persuaded that the identifying evidence would have a negative or damaging effect on each of the sources. An inference to that effect arises from the evidence that the second defendant gave promises not to disclose the identity of the sources and such promises would be unnecessary if the sources were not concerned about potential negative effects on them if their identities were known. The drawing of that inference is strengthened by the second defendant's evidence that while he could not say with any certainty exactly what would happen if the identities of his sources were revealed, 'it is likely that they would each lose trust within their respective fields'. Finally, I accept that disclosure of the identities of the sources would damage the second defendant's reputation as a journalist. I consider that potential sources would be concerned about disclosing information to him on a confidential basis in the future if a direction was given and that this would make it more difficult for him to effectively report on matters of public interest.
(f)The means, including any ancillary orders that may be made under s 20M, available to limit the harm or extent of the harm that is likely to be caused if the identifying evidence is given: The trial of these proceedings will be before a jury. It would be contrary to the principles of open justice for the trial to be held in camera. It would be within the court's inherent jurisdiction to make orders suppressing the identifying evidence and such orders might mitigate the harm or the extent of the harm that might be suffered by each of the sources. I consider however, that the disclosure of the identifying evidence, even on the basis that such evidence were the subject of suppression orders, would have the effect of inhibiting members of the community from providing information to journalists on a confidential basis. Furthermore, damage to the public interest in the flow of information to the media would be suffered, notwithstanding the taking of such measures.
(g)The criteria under s 20J(3)(g) - (i) are not matters which arise for consideration in this case.
(h)Whether or not there has been misconduct, as defined in s 20K(1), on the part of the informant or the journalist in relation to obtaining, using, giving or receiving information: I consider the issue of misconduct in the paragraphs that follow.
Leaving to one side the issue of misconduct, I am not persuaded that a direction should be given. Uppermost in my consideration of the relevant factors are two matters. In my assessment, the ability of the plaintiff to respond effectively to the qualified privilege defences and to defend the second defendant's claim is not impaired to a material extent by not knowing the identity of the sources. On the other side of the scales, I consider that directing a journalist to disclose a confidential source is likely to have a materially adverse effect on the willingness of members of the public to disclose information to journalists on a confidential basis. It is this factor rather than the defendants' particular interests - though those are not irrelevant - that weighs most significantly in the balance against making a direction for disclosure.
Was there misconduct on the part of the informants or on the part of the second defendant?
Deceit
The plaintiff alleges that the second defendant deceived him in the course of a telephone conversation between them on 31 March 2016. I have reproduced the plaintiff's version of the conversation as recounted by Mr Tharby in his affidavit earlier these reasons.
The plaintiff alleges deceit on the following grounds:
(a)The second defendant had no basis to state to the plaintiff that he had 'proof' that he, the plaintiff, had sent his book for publication and that, in doing so, he had 'plainly deceived' [the plaintiff].
(b)By publishing the 1 April Newspaper Article containing statements about the plaintiff's living arrangements purportedly in reliance on the plaintiff's pre‑selection application without asking him about them, the 1 April Newspaper Article repeated the substance of the 31 March Newspaper Article and this involved deceit of the plaintiff by mischaracterising the substance of the article and by failing to put the sting of the article to the plaintiff for his considered reply.
This is an interlocutory application. I am not prepared to make the serious finding of deceitful conduct on the part of the second defendant urged on me by the plaintiff on the basis of his account of the telephone conversation given by way of hearsay evidence, when the account has not been tested by cross-examination, and I have not heard the second defendant's account of the conversation.
Inappropriate partiality
The plaintiff argues that the second defendant was guilty of misconduct because the terms in which the articles were written demonstrated an 'inappropriate partiality' on his part. In his written submissions he poses the question 'Why did [the second defendant] characterise the plaintiff as "recently" moving out of the family home to live with his "new" girlfriend?' The plaintiff argues that the second defendant could have established that the plaintiff had moved out of his former family home in about July 2014 and that he had met Dr Hoad in November 2014 if he had asked the plaintiff or Dr Hoad or, as noted earlier, searched the Parliamentary records. Further, the plaintiff argues that the defendants used The Australian as a medium to denigrate him further based on Dr Hoad's letter - he contends that the defendants have 'entered the fray and failed to remain dispassionate in the process'.
The phrase 'inappropriate partiality' as it appears in s 20K(1)(c) is imprecise. The dictionary definition of 'inappropriate' is 'not appropriate' and the definition of 'appropriate' relevantly includes 'not acceptable'. These definitions provide no assistance in defining the phrase with greater precision. Other than what may be gleaned from the surrounding text, the Evidence Act itself provides no guidance as to what 'inappropriate partiality' is - there is no statement of the criteria by reference to which this concept is to be evaluated.
The various other kinds of conduct that satisfy the definition of misconduct are self-evidently serious - the commission of an offence, an act or omission that exposes the informant or a journalist to a civil penalty, deceit, dishonesty, breach of trust, corruption, conduct that provides reasonable grounds for the termination of the informant's or the journalist's employment. That is the immediate context in which the phrase 'inappropriate partiality' is to be construed.
'Partiality' in reporting is not 'misconduct' but where is the line to be drawn between permissible partiality and 'inappropriate partiality'? Reasonable minds will differ on what is permissible partiality, that being so, and guided by the matters of context to which I have referred, in my judgment, partiality will only be inappropriate if it constitutes a gross or substantial departure from the standards of independence and fairness expected of responsible journalists. I recognise this approach is open to the criticism that it does no more than substitute the equally imprecise terms of 'gross' or 'substantial' for 'inappropriate'. I recognise also that there may be an overlap between misconduct that may constitute 'inappropriate partiality' and misconduct that may provide reasonable grounds for disciplinary action that falls within the ambit of s 20K(1)(i).
For a person acting judicially assessing whether a journalist writing on political affairs for a national newspaper has crossed the line and demonstrated inappropriate partiality is always likely to be a problematic and difficult evaluative exercise. Caution must be exercised to ensure that the right to free speech is not indirectly undermined.
In this case the plaintiff relies heavily on the statement in the 1 April 2016 Newspaper Article that 'It has emerged [the plaintiff] recently left the family home in Leeming in suburban Perth, to live about 60 km away with his new girlfriend' (emphasis supplied), coupled with the failure to make enquiries directly of the plaintiff or of Dr Hoad, and the comparison between the plaintiff's living arrangements and those of Mr Morton to demonstrate 'inappropriate partiality'.
As to the living arrangements, in my view, it is difficult to argue that drawing the comparison between the rival candidates actual living arrangements (as distinct from how long those arrangements had been in place) demonstrates inappropriate partiality because the candidate's respective living arrangements were described correctly and the subject was a matter of public interest.
It is certainly arguable that the article conveyed the impression that the plaintiff had left the family home a matter of weeks or at most a few months - not approximately 20 months as the plaintiff contends ‑ before the publication of the 1 April Newspaper Article and that the article conveyed the impression that the plaintiff's relationship with Dr Hoad was only weeks or a few months old, not approximately 17 months as the plaintiff contends. That the article may have conveyed this impression may cause some to think that the second defendant was not impartial.
In my judgment, however, the matters on which the plaintiff relies do not provide an adequate foundation on which to base a finding that the second defendant demonstrated inappropriate partiality as I consider the concept should be understood.
Misuse by source A of the plaintiff's pre-selection application
In considering the application of the newspaper rule I have expressed the view that the evidence supports the conclusion that it is probable that source A misused the plaintiff's pre-selection application. Section 20K(4) provides that if misconduct is a fact in issue and there are reasonable grounds for believing that there was misconduct on the part of the informant or the journalist in relation to obtaining, using, giving or receiving information, the person acting judicially may so find. In my judgment, the matters to which I have referred earlier in these reasons constitute reasonable grounds for believing that there was misconduct on the part of source A for the purposes of s 20K(1) of the Evidence Act on the part of source A and I so find.
Having found that there was misconduct on the part of source A, s 20K(2) of the Evidence Act provides that I may, but am not bound to, give a direction that the identity of the source be disclosed. In determining whether to do so or not, I must have regard to the principles set out in s 20K(3). The three principles that are of potential application in this case are found in s 20(K)(3)(b), (d) and (f). For ease of reference, they are in the following terms:
(b)that generally a direction should be given if the information given to a journalist could have been provided, in a way that did not constitute misconduct, to another person to deal with the concern;
(d)that generally a direction should be given if the misconduct involved a breach of privacy that was not warranted in the circumstances, having regard to the value to be attached to -
(i)the privacy of information regarding private citizens generally; or
(ii)the privacy of information regarding matters which may be commercial in confidence; or
(iii)the principle of Cabinet confidentiality; or
(iv)the principle of public interest immunity;
…
(f)that it is otherwise in the public interest to give or refuse to give a direction.
Section 20K(3)(b) contemplates a situation in which an informant has information relating to a 'concern' that could have been provided to another person but which was provided to a journalist. This provision has no application to the exercise of the discretion that must be exercised in relation to source A.
The Freedom of Information Act 1992 (WA) has no application in the factual circumstances presented by this case and I am not satisfied that the information - that the plaintiff's application for pre-selection listed the plaintiff's address as Halls Head - could have been obtained by the second defendant by other lawful means. Accordingly, s 20K(3)(c) does not apply.
The provision to the second defendant of the plaintiff's application for pre-selection involved a disclosure to the defendants of the plaintiff's personal information that would ordinarily be regarded as private - his full name, his current address (though the application recorded that the plaintiff was on the electoral roll at his current address), the date and place of his birth, his marital status, the ages of his children and the number of years in which he had been resident in Australia and in Western Australia. None of this information was, however, of a sensitive nature and I infer from the fact that the plaintiff was a public figure that it is information that was most likely in the public domain. Section 20K(3)(d) calls for an evaluation of whether the breach of privacy was 'not warranted in the circumstances' having regard to the value to be attached, relevantly, to 'the privacy of information regarding private citizens generally'. Having regard to the non‑sensitive nature of the personal information that was disclosed, I am not persuaded that 'the breach of privacy was not warranted in the circumstances'.
Section 20K(3)(f) requires the person acting judicially to consider whether it is otherwise in the public interest to give or refuse to give a direction. For the reasons given above, I am satisfied that it is otherwise in the public interest to refuse to give a direction in relation to the disclosure of source A's identity.
For the reasons canvassed in the context of my consideration of the application of the newspaper rule, I am not satisfied that sources B and C misused Dr Hoad's letter or the plaintiff's 26 July 2017 email to members of the Liberal Party. Had I been so satisfied, I would not have been persuaded that a direction for disclosure of the identities of sources B and C should be made for the same reasons that I was not satisfied that it was necessary in the interests of justice for the identities of sources B and C to be disclosed.
Having concluded that the defendants should not be compelled at trial to disclose the identities of sources A, B and C, for the court to order at an interlocutory stage that the plaintiff be allowed to inspect unredacted documents that would have the effect of disclosing the identifying information to the plaintiff, would undermine the protection afforded to the identifying evidence by the protection provisions and would amount to an abuse of process.[45] So much was accepted by the plaintiff's counsel in the course of oral submissions.[46]
[45] Hancock Prospecting Pty Ltd v Hancock [168].
[46] ts 131.2.
I will hear the parties as to the terms of the orders and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DG
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICES PRITCHARD AND TOTTLE22 NOVEMBER 2018
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