Jensen v Nationwide News Pty Ltd [No 6] - [2018] WASC 415

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   JENSEN -v- NATIONWIDE NEWS PTY LTD [No 6] [2018] WASC 415
CORAM:   QUINLAN CJ
HEARD:   19 DECEMBER 2018
DELIVERED          :   19 DECEMBER 2018
FILE NO/S:   CIV 1535 of 2016
BETWEEN:   DENNIS GEOFFREY JENSEN
Plaintiff
AND
NATIONWIDE NEWS PTY LTD
First Defendant
ANDREW BURRELL
Second Defendant

Catchwords:

Practice and procedure - Order 36B of the Rules of the Supreme Court 1971 (WA) - Application to set aside subpoena seeking the production of telephone records - Journalist's confidential sources - Whether subpoena is an abuse of process - Whether subpoena serves a legitimate forensic purpose - Shield Laws - Newspaper rule - Discretion to allow inspection - Public interest in confidential communication of information to news media - Relevance of the documents - Inspection of documents in redacted form

Legislation:

Evidence Act 1906 (WA), s 20G, s 20I - s 20M
Rules of the Supreme Court 1971 (WA), O 26, O 36B

Result:

Application to set aside subpoena dismissed

Orders made limiting inspection of documents produced under subpoena

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M L Bennett & Mr A Tharby
First Defendant	:	Mr T Blackburn SC & Mr J D MacLaurin
Second Defendant	:	Mr 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):

Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256
Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498
Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290
Jensen v Nationwide News Pty Ltd [No 5] [2018] WASC 360
Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34
National Employers' Mutual General Insurance Association Ltd v Waind (1978) 1 NSWLR 372
Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Stanley v Layne Christensen Company [2004] WASCA 50
UBS AG v Tyne [2018] HCA 45
Wran v Australian Broadcasting Commission (1984) 3 NSWLR 241

QUINLAN CJ:

(This judgment was delivered extemporaneously on 19 December 2018 and has been edited from the transcript.)

Introduction

This is an application by the defendants, pursuant to O 36B of the Rules of the Supreme Court1971 (WA) and the Court's inherent jurisdiction, to set aside a subpoena issued by the plaintiff to a third party, Telstra Corporation Limited (Telstra), dated 26 October 2018 (or to otherwise restrict inspection of the documents the subject of the subpoena).

Background

The application must be considered in light of Tottle J's earlier decision in this matter in Jensen v Nationwide News Pty Ltd [No 5],[1] which his Honour delivered on 22 November 2018.
[1] Jensen v Nationwide News Pty Ltd [No 5] [2018] WASC 360.
That decision, at [4], provides the following useful summary of the plaintiff's claim and the second defendant's counterclaim:
(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.
·   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.
Jensen [No 5] concerned the defendants' application for orders that the plaintiff not be permitted to inspect three discovered documents, other than in redacted form. Those documents consisted of communications between the second defendant and three confidential sources, referred to as Sources A, B and C.
As set out at [3] of his Honour's reasons, those documents, relevantly, included:
(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; and
(b)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.
The redactions in issue in Jensen [No 5] were made by the defendants so as to remove information identifying the sources. The application in Jensen [No 5] to restrict inspection was brought so as to protect the sources' identities. For that purpose, the defendants invoked:
(a)the rule of practice known as the 'newspaper rule';
(b)the protection provisions for journalists contained in s 20G and s 20I to s 20M of the Evidence Act 1906 (WA) (which I will refer to as the Shield Laws); and
(c)Order 26 r 1B of the Rules of the Supreme Court.
That application, I also note, was made against the background of the plaintiff's expressed desire to administer interrogatories to the defendants for the purpose of compelling them to disclose the identities of Sources A, B and C. Although the application in Jensen [No 5] was brought by the defendants, in substance, it was treated as an application by the plaintiff for an order that the redactions made by the defendants to the material be reversed.
In Jensen [No 5] Tottle J concluded that, by reason of the Shield Laws, the defendants should not be compelled, at trial, to disclose the identities of Sources A, B and C. His Honour went on to hold:[2]
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 [Shield Laws] and would amount to an abuse of process.
[2] Jensen v Nationwide News Pty Ltd [No 5] [135].
Tottle J also held, in applying the newspaper rule, that it was not necessary in the interests of justice for the identity of Sources A, B and C to be disclosed to the plaintiff.[3]
[3] Jensen v Nationwide News Pty Ltd [No 5] [52] - [91], [95], [96].

The subpoena in the present case

The subpoena issued to Telstra relevantly requires the production of the following documents:
(a)records of incoming and outgoing calls, SMS messages and MMS messages for the period 1 February 2016 to 30 April 2016 for four telephone numbers, being the work telephone number of the second defendant, the mobile telephone number of the second defendant, the work telephone number of a Ms Paige Taylor (another employee of the first defendant), and the mobile telephone number of Ms Taylor; and
(b)records of incoming and outgoing calls, SMS messages and MMS messages for the period 1 August 2017 to 14 August 2017 for the two telephone numbers relating to the second defendant.
Telstra has already responded to the subpoena and the documents are in the custody of the Court.
With the parties' consent, I have viewed those documents. They are contained on a password-protected computer disc and are identified as Annexure A through to Annexure F:
(a)Annexure A relates to the work telephone number of the second defendant for the period 1 February 2016 to 30 April 2016;
(b)Annexure B relates to the mobile telephone number of the second defendant for the period 1 February 2016 to 30 April 2016;
(c)Annexure C relates to Ms Taylor's work telephone number for the period 1 February 2016 to 30 April 2016;
(d)Annexure D relates to Ms Taylor's mobile telephone number for the period 1 February 2016 to 30 April 2016;
(e)Annexure E relates to the work telephone number of the second defendant for the period 1 August 2017 to 14 August 2017; and
(f)Annexure F relates to the mobile telephone number of the second defendant for the period 1 August 2017 to 14 August 2017.

The parties' submissions

The defendants' application to set aside the subpoena is made on the bases that the subpoena serves no legitimate forensic purpose, is an abuse of process and is oppressive. The defendants' attack is, essentially, that the subpoena, by revealing confidential sources (in particular, Source A and Source C), would circumvent the decision made by Tottle J in Jensen [No 5] and undermine the important protections provided by the Shield Laws.
To the contrary, the plaintiff submits that the subpoena was issued for a number of legitimate forensic purposes. He further submits that, as the subpoena is not directed to a journalist, or to his or her employer, it is outside the ambit of the Shield Laws and the newspaper rule. In that regard, the plaintiff relies upon Wran v Australian Broadcasting Commission,[4] a decision to which I will return later.
[4] Wran v Australian Broadcasting Commission (1984) 3 NSWLR 241.
In order to properly evaluate the parties' submissions it is necessary to set out, briefly, each of the legitimate forensic purposes identified by the plaintiff for the production of the documents.
The plaintiff's written submissions identify essentially five such purposes.
The first purpose identified by the plaintiff is that the second defendant's telephone records will enable the plaintiff to establish the identity of Source A. The identity of that source is said to be relevant to the defendants' defence of qualified privilege to the 31 March 2016 article and also to the plaintiff's justification defence to the second defendant's counterclaim. I note that that purpose is precisely the same purpose as that for which the plaintiff sought inspection of the unredacted text messages between Source A and the second defendant in Jensen [No 5].
The second purpose identified by the plaintiff relates to the defendants' defence of qualified privilege in relation to the 1 April 2016 article. In particular it concerns whether the second defendant contacted Mr Sean Conway (who worked in the plaintiff's office) prior to publishing the 1 April 2016 article.
In that regard, the plaintiff pleads that no reasonable attempt was made by the defendants to obtain and publish a response from him before publishing the 1 April 2016 article.[5] In response, the defendants plead that the second defendant contacted Mr Conway for comment prior to publishing that article.[6] In a witness statement filed in these proceedings, the second defendant says that it was his normal practice to seek comment from Mr Conway on behalf of the plaintiff.[7] The plaintiff therefore submits that the second defendant's telephone records will assist in determining the nature and extent of any such 'practice' and thus the reasonableness of seeking comment from Mr Conway.
[5] Second Amended Reply and Defence to Counterclaim filed 6 September 2018 [6.2].
[6] Substituted Defence and Counterclaim filed 12 June 2018 [46](f)(v). The Substituted Defence and Counterclaim also pleads that the second defendant attempted to contact the plaintiff at that time. The defendants disavowed that pleading in the course of argument before me.
[7] Witness Statement of Andrew Burrell filed 22 October 2018 [47].
The third purpose identified by the plaintiff is to meet, by way of cross‑examination, the defendants' case in relation to an attempt by the plaintiff to contact the second defendant on 31 March 2016. The plaintiff submits that the telephone records will show whether the second defendant was using his mobile telephone on 31 March 2016, and will thereby enable the second defendant to be questioned as to why he claims he did not receive the plaintiff’s telephone call. The plaintiff submits that those records will also enable him to respond to any unforeseen evidence from the second defendant as to why he claims he did not receive that call.
The fourth purpose identified by the plaintiff relates to Ms Taylor's telephone records. It is submitted that Ms Taylor's records may disclose a line of inquiry relevant to the plaintiff’s defence of justification in the counterclaim. One of the imputations pleaded in the counterclaim, as arising from the plaintiff's statements on 4 April 2016, includes that the second defendant was motivated by serving the political objects of others in damaging the plaintiff rather than a legitimate, journalistic purpose. In that context, the plaintiff relies upon evidence that Ms Taylor was in contact with the plaintiff's rival for preselection, Mr Ben Morton, on 27 April 2016.
The final purpose identified by the plaintiff is that the telephone records are relevant to the second defendant’s counterclaim and, in particular, to his plea that he suffered hurt, distress and embarrassment. In the context of this plea, the second defendant’s witness statement refers to his having received calls from journalists, from other media organisations and from his editor. [8] The plaintiff submits the telephone records will enable him to verify such calls and make enquiries as to their substance.
[8] Witness Statement of Andrew Burrell filed 22 October 2018 [61] - [63].
In my view, many of the purposes identified by the plaintiff as being legitimate forensic purposes for the issue of the subpoena may properly be regarded as secondary to the purpose of principal significance, namely the identification of Source A and Source C. That purpose (and the desire to thwart it) is, of course, the motivating force behind the defendants' application.
Before turning to the issues that arise on the application, I will briefly set out the relevant law.

The relevant law

The Court's jurisdiction

The Court's jurisdiction in relation to subpoenas is governed, in part, by O 36B r 8A(2) of the Rules of the Supreme Court which provides that:
On a request by the addressee, a party or any other person with a sufficient interest, the Court may, by order -
(a)set aside a subpoena or part of it; or
(b)make or vary directions in relation to removing from and returning to the Court, and the inspection, copying and disposal, of any document or thing that has been or is to be produced under it; or
(c)grant other relief in respect of it.
In that respect, it is also clear that the Court is able to set aside a subpoena in the exercise of its inherent jurisdiction. It is also well established that a subpoena may be set aside where it does not serve a legitimate forensic purpose, where it is oppressive or is otherwise an abuse of process.

Abuse of process

The power to prevent abuses of process has received much attention by the High Court of Australia. In Batistatos v Roads and Traffic Authority (NSW)[9] Gleeson CJ, Gummow, Hayne and Crennan JJ, at [14] and [15], identified the breadth of that power and the resistance of the courts to laying down hard and fast definitions as to what may constitute an abuse of process:
[9] Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256.
In Ridgeway v The Queen, Gaudron J explained:
'The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are 'frivolous, vexatious or oppressive'. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to 'defined and closed categories' because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment'.'
Earlier, in Rogers v The Queen, McHugh J observed:
'Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.'
His Honour added:
'Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process.'
To that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious. Further, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of the process of the court.
(footnotes omitted)
These principles were recently confirmed by the High Court in UBS AG v Tyne.[10] In that case Kiefel CJ, Bell and Keane JJ at [7] referred, with apparent approval, to Lord Bingham of Cornhill's explanation that consideration as to whether conduct is an abuse of process requires the court to make:
a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all of the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue that could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.
[10] UBS AG v Tyne [2018] HCA 45. See, particularly, Kiefel CJ, Bell and Keane JJ at [1] and [7].

While these principles were expressed in the context of an abuse said to arise by reason of a party seeking to raise an issue that could have been raised before, in my view, they are of general application to all forms of abuse of process.
The application of these principles to subpoenas, in the context of the Shield Laws, was considered by Pritchard J in Hancock Prospecting Pty Ltd v Hancock.[11]
[11] Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290.
In that case, subpoenas had been issued, upon the applicant's application, to a journalist and his employer, a newspaper publisher. The documents sought pursuant to the subpoena included information given to the journalist on the condition that he not disclose that information, or the name of the person who gave it to him, without their prior approval.
The journalist and the newspaper publisher applied to the Court to set aside the subpoenas directed to them on a number of grounds, including that the subpoenas were oppressive or constituted an abuse of process as they attempted to circumvent the Shield Laws.
Pritchard J held that the operation of the Shield Laws was a factor sufficient of itself to warrant the conclusion that the subpoenas were oppressive and an abuse of process.[12]
[12] Hancock Prospecting Pty Ltd v Hancock [85].
In coming to that conclusion, her Honour observed that:[13]
The Shield Laws do not contain a provision which indicates that they are to be applied directly in respect of an objection to the production of documents under a subpoena.
Her Honour described this as a 'curious omission', given the appearance of such provisions in the laws of other jurisdictions upon which the Shield Laws were modelled.[14]
[13] Hancock Prospecting Pty Ltd v Hancock [102].
[14] Hancock Prospecting Pty Ltd v Hancock [102] - [103].
Nevertheless, Pritchard J found that, having regard to the protection afforded by the Shield Laws (specifically, s 20I of the Evidence Act), it would be very unlikely that the journalist or an officer of the newspaper publisher would be compelled to give evidence of identifying information of the kind contained in the documents sought under the subpoenas.[15]
[15] Hancock Prospecting Pty Ltd v Hancock [167].
As a result of that finding, her Honour held that:[16]
To require the production of the documents sought under the subpoena would permit [the applicant] to obtain access to identifying information in circumstances where neither [the journalist] nor any officer of [the newspaper publisher] could be compelled to give evidence of that kind ... In my view, to permit the subpoena to be used in that way would constitute an abuse of process because it would wholly undermine the protection afforded to the identifying evidence under s 20I of the Evidence Act.
[16] Hancock Prospecting Pty Ltd v Hancock [168].
Her Honour went on at [175] to say that:
To require the production of documents containing the same identifying information under a subpoena would negate the very protection that the Parliament has sought to create. All a litigant would need to do to avoid the protection in section 20I would be to subpoena a journalist's notes in advance of a trial.
It is important to note, as Pritchard J emphasised, that Hancock Prospecting was confined to the facts of that case, both as to the terms of the subpoena, the nature of the issues in the arbitration in that case and the evidence before the Court.[17] In that regard her Honour stated, at [176], that:
The result in this case does not mean that a subpoena for the production of documents held by a journalist or his or her employer could never be enforced.
[17] Hancock Prospecting Pty Ltd v Hancock [176].
The plaintiff in the present case seeks to distinguish Hancock Prospecting, noting that the subpoena in this case is not directed to the journalist or his employer but to their telecommunications provider.
In that regard, the plaintiff, as I indicated above, also relies upon Wran and, in particular, Hunt J's observation at page 259 that:
As the newspaper rule does not operate to prevent the disclosure by anyone other than the newspaper of the identity of the newspaper’s sources of information, there is nothing to prevent a plaintiff seeking to obtain that information from another source and thereby to avoid (or evade) the privilege claimed by the defendant. The issue of the subpoena for that purpose cannot be said to be an abuse of the court's process.
As this passage makes clear, in Wran Hunt J was dealing only with the newspaper rule. In that regard, it is significant that, earlier in the judgment, Hunt J said of that rule:[18]
(i)that the so‑called privilege afforded by the newspaper rule is of very limited application;
(ii)that it is no more than a rule of practice whereby a news media defendant in a defamation action (or a related type of action) will not be compelled to disclose the source of its information prior to the trial of that action; and
(iii)that it does not prevent the disclosure of that identity by other persons.
[18] Wran v Australian Broadcasting Commission, 249.
Before turning to the application of these principles to the subpoena in the present case, it should be noted that, even if the subpoena is not an abuse of process, a separate and distinct issue necessarily arises; namely whether, in its discretion, the Court should allow inspection of the documents produced pursuant to the subpoena and, if so, whether such inspection should be subject to conditions.
The law in this regard may also be briefly stated.

The discretion to allow inspection

In Stanley v Layne Christensen Company[19] the Full Court (per Miller and E M Heenan JJ) adopted as correct the three-stage procedure set out in National Employers' Mutual General Insurance Association Ltd v Waind.[20] At [12] - [14] their Honours stated:
[19] Stanley v Layne Christensen Company [2004] WASCA 50.
[20] National Employers' Mutual General Insurance Association Ltd v Waind (1978) 1 NSWLR 372.
This approach is consistent with the three‑stage procedure described and set out in National Employers' Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372 at 348 per Moffitt P, Hutley and Glass JJA being:
1.Production of the documents to the court by the witness;
2. the decision of the Judge on whether either or both parties may inspect the documents;
3. admission into evidence of a document produced.
In the present case it is only necessary to dwell on stage two of this process, although the procedure to be adopted at each of the other stages is well described in the authorities.
It will be for the trial Judge, or other judicial officer supervising the process, to decide the extent to which documents produced to the court under subpoena should be available for inspection by one or more of the parties, the timing of any inspection permitted and any special conditions or restrictions which may need to be imposed.  Normally, inspection is allowed if it is shown or acknowledged that the documents produced have apparent relevance to the issues in the case.  It is not necessary that the documents produced under the subpoena are themselves admissible for inspection to be permitted – see National Employers' Mutual General Insurance Association Ltd v Waind (supra) at 385.  Still, the nature and extent of inspection to be permitted is for the court to decide and considerations of confidentiality may affect whether, or the extent to which, inspection may be permitted.
In this regard the confidential nature of the documents produced, or their lack of relevance to any of the issues arising in the pending proceedings will give rise to a need for caution by the court in permitting inspection even of a restricted kind.  Where the court is invited to consider permitting confidential disclosure to legal advisers the observations of Wilcox J in Hilton v Wells (1985) 59 ALR 281 at 295 draw attention to the risks involved. In that case Wilcox J upheld a claim of privilege from production of affidavits used to seek the issue of warrants for the interception of telephone communications under Commonwealth legislation and, in doing so, refused to allow inspection of the privileged documents by the counsel or solicitors of the parties. His Honour said:
'Without reflecting in any way upon the integrity of any counsel or solicitor, difficulties are likely to arise where counsel appearing in, and advising their clients in respect of, protracted and complex proceedings acquire information which they are not free to use or to pass on to their clients.  During the heat of battle an unwitting disclosure may occur.  Frank and full advice becomes impossible.  I am aware of cases in which, for reasons such as these, experienced counsel have declined to receive information which they are not free to share with their clients.  It seems to me merely common sense to conclude that the fewer people who have access to confidential information the less is the risk of unauthorised disclosure.'
At [15], their Honours concluded, importantly, that:
It follows from these authorities that a decision that there is a legitimate forensic purpose to allow a subpoena to stand, or to require the production of the documents to the court does not of itself mean that there should be complete or partial inspection of the documents so produced by all the parties to the action. There is a second stage in the process which must be directly addressed, namely whether there should be unrestricted inspection of the documents produced, or whether inspection should be limited or conducted on special terms and conditions.
Whether there should be unrestricted inspection, or whether inspection should be limited or conducted on special terms and conditions, invites attention to privacy interests and matters of confidentiality.
In that respect, their Honours in Stanley v Layne Christensen Company also referred to the decision of the Full Court in Apache Northwest Pty Ltd v Western Power Corporation.[21]
[21] Apache Northwest Pty Ltd v Western PowerCorporation (1998) 19 WAR 350.
In Apache Northwest, Kennedy, Pidgeon and Franklyn JJ also accepted, as correct, the three-stage procedure described in Waind. At pages 380 to 381, their Honours referred to the approach of the primary judge in recognising the relevance of confidentiality to the second stage of that procedure. Their Honours said:[22]
[The primary judge], rightly in our view, found herself unable to ascribe any public interest to the confidentiality of the documents in question in the present case, however much it may be in the appellants' individual interests. She did, however, accept that, although, standing alone, confidentiality is not a ground for refusing to issue, or for setting aside, a subpoena, it is a factor which is to be taken into account, together with those tests for oppression which are determined by reference to the breadth of the subpoena, the definition of documents involved and the type of degree of burden placed on those to whom the subpoena is addressed. She also accepted that the relevance of the confidential documents being sought to the issues in the arbitration is a further factor.
Her Honour fully recognised the appellant's interest in the preservation of confidentiality. The provisions which she made to ensure the maintenance of that confidentiality, so far as reasonably practicable, were detailed, and there has been no suggestion to us that any additional provision should be made in this regard. We are not persuaded that her Honour was in error in her approach to the issue of confidentiality.
[22] Apache Northwest Pty Ltd v Western PowerCorporation, 380 - 381.
The Full Court's conclusion in that case serves to emphasise the discretionary nature of the exercise.
These principles were also summarised by Beech J in Boase v Axis International Management Pty Ltd [No 3].[23] By reference to Apache Northwest and Mobil Oil Australia Ltd v Guina Developments Pty Ltd,[24] his Honour confirmed:[25]
Confidentiality is not of itself a ground to refuse inspection of an apparently relevant document. In the end, the public interest in the administration of justice prevails over the interest in confidentiality of the information ... However, confidentiality can be taken into account, together with any assessment of the extent of the document's apparent relevance, in the exercise of discretion whether to permit inspection ...
[23] Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498.
[24] Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34.
[25] Boase v Axis International Management Pty Ltd [No 3] [20].
It will, therefore, be apparent that whether inspection is allowed is not to be determined on an all or nothing basis. Rather, it is necessary for the Court, in exercising its broad discretion, to make an assessment of the extent of the relevance of a document to the case, any private interests of persons affected by the subpoena (including issues of confidentiality), and any issues of public interest. The public interest in the administration of justice is, of course, the ultimate touchstone.
As the authorities make clear, that exercise must be undertaken by the court regardless of any objection by any party.[26]
[26]National Employers' Mutual General Insurance Association Ltd v Waind (1978) 1 NSWLR 372, 384 - 385 (Moffit P).

Application to the present case

I turn to the application of these legal principles to the present case.

Should the subpoena be set aside as an abuse of process?

As it was the issue raised by the defendants in their application (prior to the plaintiff having identified other purposes for the subpoena) I address first whether the subpoena is an abuse of process for seeking the identity of Source A.
I accept, in accordance with the approach of Hunt J in Wran, that the newspaper rule, properly understood, could not operate so as to prevent a subpoena being issued to obtain documents from a third party that would reveal a confidential source, notwithstanding that the rule might prevent pre-trial disclosure of the source by the news media defendant.
In my view, however, it is significant that in Wran, Hunt J was dealing only with the newspaper rule which, as his Honour identified in the passage reproduced above, was a rule of practice of limited application and did not create a privilege on the part of a journalist or media organisation. At the time that Wran was decided there was, relevantly, no other principle of law reflecting a public interest in the protection of journalists' confidential sources.
There has since been a substantial shift in the law created by the Shield Laws.
It is now the case that, subject to the Court making a contrary direction under s 20J, s 20I of the Evidence Act prevents a journalist or a person for whom the journalist was working from being compellable to give evidence that would disclose the identity of an informant, where the journalist has promised the informant not to disclose the informant’s identity. Those statutory provisions do create a form of privilege; a privilege that is intended to reflect important public interests.
The purpose of, and the public interest reflected in, s 20I is, in my view, evident from the terms of the legislation itself. It is the public interest in the communication of facts and opinions by the public to news media. While it is not necessary, in my view, to go to the second reading speech to discern that public interest, as both parties referred to it, I note that the second reading speech expressly refers to:[27]
… the public interest of preserving appropriate confidentiality while recognising that journalists play a vital role in ensuring the free flow of facts and information to the public.
[27] Second Reading Speech, Evidence and Public Interest Disclosure Legislation Amendment Bill 2011 (WA), Parliamentary Debates, Legislative Council, 20 October 2011, 1.
The direct protection provided by s 20I, of course, applies only to journalists or the persons for whom a journalist was working. It is not a protection that, in terms, applies to other persons. Nor, indeed, is it a protection that, in terms, applies outside of the actual giving of evidence.
The direct application of the Shield Laws to a journalist (or their employer) giving evidence, does not, however, exhaust the relevance of the public interest served by those laws in other legal contexts.
For example, the need to ensure that the protection they afford (at the evidence stage) is not undermined by procedural steps in proceedings may be such that, in the exercise of the courts' procedures requiring the production of documents, a court will give effect to the public interest reflected in the Shield Laws in advance of the giving of any evidence. This is not an extension of the Shield Laws themselves, but rather the exercise by the court of its own processes, in such a way as to prevent injustice.
That, indeed, is the result reflected in Pritchard J's judgment in Hancock Prospecting. Her Honour recognised that Parliament did not include a provision similar to provisions in New South Wales expressly extending the application of the Shield Laws to subpoenas. Nevertheless, her Honour concluded that:[28]
[T]he 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.
[28] Hancock ProspectingPty Ltd v Hancock [174].
In my view, that public interest will, in appropriate cases, be relevant both to the application of the principles of abuse of process and to the discretion whether to allow inspection of documents.
In the present case, for example, in my view, to allow the plaintiff to access the telephone records of the second defendant under subpoena so as to identify Source A is capable of being characterised as an abuse of process, notwithstanding that the subpoena was issued to Telstra.
I reach that view for the following reasons.
First, while the subpoena is strictly directed to a third party, it nevertheless concerns material intimately connected with the journalists themselves. The subpoena is not, for example, directed to a truly unrelated third party as, for example, a person who, quite apart from the journalist, may happen to know the identity of the confidential sources.
Put another way, there is a certain sense in which the telephone records of a journalist[29] are private information that the journalist has an interest in protecting, notwithstanding that that information is held by the telecommunications provider and is sought to be compulsorily obtained from the provider. For example, as the plaintiff has pointed out, the telephone records in the present case could arguably have been sought by way of discovery from the second defendant on the basis that they were within his power, inasmuch as the second defendant would be able to request them. There would be no question, in those circumstances, that the records would be entitled to the same protection as the information protected by the redactions in Jensen [No 5].
[29] Or indeed any person, for that matter.
Secondly, the subpoena in the present case, inasmuch as it seeks the telephone number of Source A, is specifically directed to the very information that Tottle J in Jensen [No 5] determined the plaintiff should not be entitled to inspect.
As I have set out above, his Honour held at [135]:
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 [Shield Laws] and would amount to an abuse of process.

The identifying information the subject of that determination, was, in essence, the telephone number (or contact details) that would otherwise appear at the head of the text message and which had been redacted. The information sought under the present subpoena is also the telephone number. Accordingly, the subpoena does not simply seek, by another means, to discover the confidential source; it seeks precisely the same means of identifying the source, namely, their telephone number. The effect of inspecting the telephone records would, in essence, be the same as unredacting the text message.
The subpoena, while being directed to a third party in relation to its records, is therefore closely connected with the orders made by Tottle J in Jensen [No 5]. In that decision his Honour expressly concluded that allowing inspection would be contrary to the public interest in the communication of facts and opinions by the public to news media. His Honour’s findings in that regard were as follows:[30]
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.
[30] Jensen v Nationwide News Pty Ltd [No 5] [114](e).
Having regard to these findings, in my view, to allow the plaintiff to obtain precisely the same identifying evidence as that which was refused by Tottle J, by the alternative means of the second defendant's telephone records with Telstra, has the real potential to bring the administration of justice into disrepute. In my view to so allow would be likely to give rise to the perception that Tottle J's orders can, in substance, be undermined.[31]
[31] As to the relevance of perception in the assessment of abuse of process, see UBS AG v Tyne at [59] (Kiefel CJ, Bell and Keane JJ) and [151] (Gordon J).
It will be apparent from the foregoing that I do not accept the plaintiff's submission that:[32]
The defendants' argument, in essence, is that no forensic lawful process can be used to discover their sources. This would require an enormous extension of the newspaper rule and the statutory protection provisions and would involve creating new law in the face of existing authority and the text and obvious policy of the Evidence Act.
[32] Plaintiff’s Submissions filed 6 December 2018 [61].
In my view, it is not an 'enormous extension' of principle to reach such a conclusion in the circumstances of this case. Rather, it is but a short step to say that the telephone records of a journalist, albeit in the hands of Telstra, should be subject to the same protection as those same records in the hands of the journalist, in circumstances in which the Court has already held that to compel their inspection from the journalist would be an abuse of process.
As I said at the outset, in my view, a subpoena to allow the plaintiff to access the telephone records of the second defendant so as to identify Source A is capable of being characterised as an abuse of process, notwithstanding that the subpoena was issued to Telstra. Had the only purpose of the subpoena in the present case been to reveal the identity of Source A and Source C, in my view, a very real question would have arisen as to whether the subpoena should be set aside as an abuse of process.
However, in the particular circumstances of this case, I would not go that far. The plaintiff has pointed to other legitimate forensic purposes beyond the purpose of identifying Source A and Source C. I am satisfied that those purposes are genuine.
In that regard, the power to control abuses of process is a power which ought to be exercised sparingly and in exceptional cases, where no other way of protecting the interests of justice is available.[33] As dealt with below, there are other means of securing the interests of justice.
[33] See, for example, Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275, 279 (French J) .
In those circumstances, I would not set the subpoena aside.

Should inspection be allowed?

In my view, the private and public interests involved in this matter are best addressed in the context of the Court's discretion as to whether, and to what extent, to allow inspection of the documents produced under subpoena.
Not only does this approach avoid the conclusion that the subpoena is an abuse of process; it enables the broader issues of public interest, identified generally in Jensen [No 5] and in Hancock Prospecting, to be brought to bear in the exercise of the discretion, and to be balanced against the putative relevance of the documents in question.
In undertaking that balancing exercise, it is necessary to consider not only the fact, but the degree, of relevance of the documents. I propose to do this by reference to the categories of documents identified by Telstra in Annexures A through to F.

Annexures A and B

Annexures A and B are the records relating to the work and mobile telephone numbers of the second defendant. Dealing with each of the forensic purposes identified by the plaintiff in turn, I conclude as follows.
In relation to the purpose of revealing the identity of Source A, while the identity of Source A is of some relevance to the proceedings as a whole, I agree the conclusions of Tottle J in Jensen [No 5] at [84] - [85], and in the context of s 20I of the Evidence Act at [115], to the effect that the issue of the identity of Source A arises in the context of an element of the plaintiff's reply to the qualified privileged defence that is inherently weak and in relation to which the plaintiff's case is not impaired to a material extent by not knowing the identity of the sources.
As his Honour said at [82]:
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 these passages, his Honour recognised that the (limited) relevance of the identity of the source was not such as to give rise to the need, in the administration of justice, for that source to be revealed.
Against the limited relevance of the identity of Source A are to be weighed the matters of public interest identified by his Honour, and in particular at [114](e) that disclosure of that identity would undermine the public interest in the communication of facts and opinions by the public to news media. Those matters of public interest, in my view, outweigh any legitimate forensic purpose in the plaintiff inspecting those documents. That conclusion applies equally in relation to the putative relevance of Source A to the defendants' defence of qualified privilege to the 31 March 2016 article and to the plaintiff's justification defence to the second defendant's counterclaim.
I would, therefore, not allow any inspection of Annexures A or B that would allow the identification of Source A.
Turning then to the second identified purpose of Annexures A and B: that of determining the nature and extent of the contact between the second defendant and Mr Conway. While this issue may, ultimately, be unlikely to loom large at the trial, in my view the material is sufficiently relevant for the plaintiff to be able to inspect Annexures A and B, insofar as they reveal communications between Mr Conway and the second defendant.
The third identified purpose of Annexures A and B is to meet the defendants' case in relation to whether the second defendant received a telephone call from the plaintiff on 31 March 2016 and, if he did not, whether he was using his mobile phone on that day.
Whether the second defendant received a telephone call from the plaintiff can be adequately dealt with by the plaintiff being able to inspect Annexures A and B, insofar as they reveal calls or messages to and from the plaintiff. In relation to the question whether the second defendant was using his mobile phone on 31 March 2016, that purpose could be and would be adequately met by the plaintiff being able to inspect the records to the extent that they reveal use of the phone at particular times during that day. That purpose does not however require access to information as to the identity of the persons who called or who received calls from the second defendant.
The final purpose identified by the plaintiff is that of verifying and making enquiries as to the telephone calls received by the second defendant from journalists, from other media organisations and from his editor. [34] Those enquiries are alleged to be relevant to meeting the second defendant's claim of hurt, distress and embarrassment.
[34] Witness Statement of Andrew Burrell filed 22 October 2018 [61] - [63].
In my view, such trains of enquiry provide an insufficient basis to justify what would be access to a potentially wide net of calls to a variety of persons over the unidentified period over which those calls were said to be made. In my view, to the extent that veracity of the calls referred to by the second defendant is relevant, limited as that relevance is, it could be adequately dealt with in cross-examination without the telephone records.
For that reason, I would not allow inspection in that regard.
In the result, I would allow inspection of Annexures A and B on the basis that they are redacted so as to show only:
(1)calls and messages to or from the plaintiff;
(2)calls and messages to or from Mr Conway; and
(3)calls and messages made or received on 31 March 2016, redacted so as to remove the number of the other party (save for those from Mr Conway or the plaintiff or to Mr Conway or the plaintiff).

Annexures C and D

Annexures C and D relate to the work and mobile telephone numbers of Ms Taylor for the period 1 February 2016 to 30 April 2016. As I have indicated above, the plaintiff submits that Ms Taylor’s telephone records are relevant to the plaintiff’s justification defence to the second defendant’s counterclaim pleading an imputation that the second defendant was motivated by serving the political objects of others in damaging the plaintiff rather than a legitimate, journalistic purpose.
In that regard, the plaintiff relies upon text messages between Ms Taylor and Mr Morton sent on 27 April 2016 (produced by Ms Taylor in answer to a subpoena) as demonstrating that they were in contact.[35] There are three text messages, two from Ms Taylor and one from Mr Morton. It is apparent that the text messages relate to a conversation (or conversations) that had occurred between the plaintiff and Ms Taylor.
[35] Affidavit of Dominique Jessie Le Miere sworn 6 December 2018, Attachment DLM-2.
In my view, that material does not give rise to a legitimate train of inquiry relevant to the issues raised in the pleadings in this matter. It is, in my view, a long bow to draw to suggest that because Ms Taylor was in communication with Mr Morton on 27 April 2016, that her telephone records from 1 February 2016 to 30 April 2016 will reveal material relevant to the plea of justification concerning imputations relating to the actions of a different journalist, the second defendant, almost a month earlier.
For those reasons, I would not allow inspection of Annexures C or D.

Annexures E and F

Turning finally to Annexures E and F, which relate to the telephone records of the second defendant for the period 1 August 2017 to 14 August 2017.
The alleged relevance of these documents is said to arise out of paragraph 40.19 of the Third Amended Statement of Claim.[36] That paragraph deals with circumstances of aggravation in relation to the plaintiff's claim.
[36] This was not one of the purposes identified in the plaintiff's written submissions, but was identified during the course of the hearing of the application.
In that respect, paragraph 40.19 of the Statement of Claim pleads that:[37]
[37] Third Amended Statement of Claim filed 4 July 2018 [40.19].
[O]n or about 11 August 2017, the Second Defendant co-wrote and the Defendants published, and the Plaintiff read:
40.19.1at page 5 of The Australian Newspaper the article entitled 'Ex- Lib MP defects to Bernardi'; and
40.19.2on The Australian Website the article entitled 'Ex-Liberal MP Jensen defects to Bernardi’s New Party' (being the same article referred to in the preceding sub-paragraph but with an alternate heading and with a hyperlink to this electronic publication having also been published by the Second Defendant on his Twitter Page on or about 11 August 2017 at 8:06 am);
an extract of which is set out below, which part of the article was calculated to publicly denigrate the Plaintiff’s action against the Defendants and thereby improperly attempt to deter the Plaintiff from pursuing the within action:
'[The Plaintiff] has launched legal action against The Australian over reports published ahead of his pre-selection contest last year. The Australian is defending the suit.
Dr Jensen's legal action includes his claims that a story that described graphic sex in a book he wrote was used by The Australian to make him out as "a purveyor of smut".'
The above plea relates to Source C inasmuch as it is Source C who sent an email to the second defendant on 9 August 2017 forwarding an email sent by the plaintiff to members of the Liberal Party on 26 July 2017. The material from Source C, it may be inferred, was what enabled the second defendant to publish the information on 11 August 2017.
In relation to Source C, it should be noted that the material was provided via email rather than via text. Accordingly, unlike in the case of Source A, the telephone records of the second defendant over the two week period preceding the 11 August 2017 article would not necessarily identify Source C. Rather, the plaintiff relies upon the inference that some telephone contact may have taken place between Source C and the second defendant prior to the email being sent. That may, however, be no more than conjecture.
In any event, in my view, the limited relevance, if any, of the identity of Source C was thoroughly dealt with by Tottle J in Jensen [No 5] in the context of the newspaper rule. In that decision, at [96], Tottle J stated:
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. 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.
The significance of this passage is that, as pleaded, the aggravating factor is said to be the publication of the article on 11 August 2017, not the identity of the source of the publication. Having regard to that very limited relevance, and to the fact that the documents may contain no information in relation to Source C and will inevitably contain other unrelated information, I would exercise the discretion so as not to allow inspection of Annexures E and F.

Conclusion

For the foregoing reasons, while I would not set aside the subpoena, I make the following orders in relation to the documents produced in response to the subpoena:
(a)The plaintiff may inspect a copy of "Annexure A" redacted so as to show only:
(i)calls and messages to, or from, the plaintiff;
(ii)calls and messages to, or from, Mr Sean Conway; and
(iii)calls and messages made or received on 31 March 2016 (redacted so as to remove the number of the other party, save for calls or messages included within (i) or (ii) above).
(b)The plaintiff may not otherwise inspect "Annexure A".
(c)The plaintiff may inspect a copy of "Annexure B" redacted so as to show only:
(i)calls and messages to, or from, the plaintiff;
(ii)calls and messages to, or from, Mr Sean Conway; and
(iii)calls and messages made or received on 31 March 2016 (redacted so as to remove the number of the other party, save for calls or messages included within (i) or (ii) above).
(d)The plaintiff may not otherwise inspect "Annexure B".
(e)The plaintiff may not inspect "Annexure C".
(f)The plaintiff may not inspect "Annexure D".
(g)The plaintiff may not inspect "Annexure E".
(h)The plaintiff may not inspect "Annexure F".

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EA
Research Associate to the Honourable Chief Justice Quinlan
8 JANUARY 2019