Kumova v Davison

Case [2021] FCA 753

FEDERAL COURT OF AUSTRALIA

Kumova v Davison [2021] FCA 753

File number: NSD 984 of 2020
Judgment of: FLICK J
Date of judgment: 5 July 2021
Catchwords: EVIDENCE – journalist privilege – whether person a journalist – whether material published on a news medium – information provided by informant – whether provided pursuant to promise – need for express promise – need for an anterior promise
Legislation:

Evidence Act1995 (Cth) ss 126J, 126K

Defamation Act 2005 (NSW) s 33

Evidence Act1995 (NSW) ss 126J, 126K

Evidence Act2008 (Vic) ss 126J, 126K

Evidence Act 2006 (NZ) s 68
Cases cited:

Ashby v Commonwealth (No 2) [2012] FCA 766, (2012) 203 FCR 440

Doe v Dowling [2019] NSWSC 1222

Jones v Dunkel (1959) 101 CLR 298

Madafferi v The Age Company Ltd [2015] VSC 687, (2015) 50 VR 492

Slater v Blomfield [2014] NZHC 2221, [2014] 3 NZLR 835

Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 68
Date of hearing: 16 June 2021
Counsel for the Applicant: Ms S Chrysanthou SC with Mr B Dean
Solicitor for the Applicant: Gilbert + Tobin
Counsel for the Respondent: Mr M G McHugh SC with Mr J M Wheeldon
Solicitor for the Respondent: Craddock Murray Nuemann

ORDERS

NSD 984 of 2020
BETWEEN:

TOLGA KUMOVA

Applicant
AND:

ALAN FRANCIS DAVISON

Respondent

ORDER MADE BY:

FLICK J

DATE OF ORDER:

5 JULY 2021

THE COURT ORDERS THAT:

The parties are to bring in short minutes of orders to give effect to these reasons within fourteen days.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

FLICK J:

  1. The Applicant, Mr Tolga Kumova, in the substantive proceeding seeks damages as against the Respondent, Mr Alan Davison.

  2. Mr Kumova claims that he has been defamed by a series of statements made by Mr Davison on his “Twitter Account”.  His Amended Statement of Claim relevantly sets forth six “matters complained of”, being publications on or about:

    ·20 September 2019;

    ·24 April 2020;

    ·20 May 2020;

    ·30 May 2020;

    ·2 June 2020; and

    ·27 June 2020.

    In very summary form, Mr Davison denies that the natural and ordinary meaning of the statements made have the meanings complained of and raises a series of defences including justification and contextual truth.

  3. Of present concern is a claim made by Mr Davison to protect the source of information communicated to him by a person, being a person described by Mr Davison in his affidavit as a “corporate advisor”. Mr Davison claims that he is entitled to invoke s 126K(1) of the Evidence Act1995 (Cth) (the “Evidence Act”). In very summary form, s 126K(1) is described as a “journalist privilege” and protects from disclosure the identity of an “informant” if the requirements of that sub-section have been met.  Senior Counsel for Mr Kumova rejects the claim…

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AGLC
Kumova v Davison [2021] FCA 753
Case
[2021] FCA 753
Decision Date

CaseChat Overview and Summary

The case of Kumova v Davison, heard in the Federal Court of Australia, centred around the contentious issue of journalist privilege under sections 126J and 126K of the Evidence Act. The primary dispute involved whether the defendant, Mr Davison, could be considered a journalist and whether the material published on his Twitter account qualified as a news medium. Furthermore, the case examined whether Mr Davison had made a promise to an informant in exchange for information and if such a promise needed to be anterior to the information being given.

The court had to determine whether Mr Davison's conduct qualified him as a journalist, as per the common understanding and the specific terms outlined in sections 126J and 126K of the Evidence Act. It was also necessary to assess if his Twitter account could be classified as a news medium and whether there was a promise made to an informant prior to the communication of information. The court needed to clarify whether the promise had to be made before the information was provided or if it could be made as part of the exchange.

In its reasoning, the court concluded that Mr Davison could not be classified as a journalist because his conduct on Twitter, which included the publication of personal opinions and non-news content, did not meet the standards typically associated with journalism. Additionally, the court found that Mr Davison's Twitter account did not qualify as a news medium given its primary purpose to share opinions rather than news. The court also found that it was unclear whether a promise was made before the information was communicated, and thus, Mr Davison did not meet the criteria under section 126K of the Evidence Act. These conclusions were based on the specific facts of the case, highlighting that the application of the journalist privilege remains a matter for judicial determination in many cases.

The court ordered that the parties arrange for a mediation before a Registrar of the Federal Court and that the costs of the proceeding follow the event. The parties were instructed to submit minutes of orders within fourteen days to implement these decisions.

Orders

Orders of the court

The parties are to bring in short minutes of orders to give effect to these reasons within fourteen days.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Whether the giving of a “promise” need be “anterior” to the giving of information or rather subsequently but necessarily as part of the course of the exchange of information, Mr Davison has failed to discharge the onus of proof resting upon him. CONCLUSIONS It has been concluded that Mr Davison cannot be characterised as a “journalist” within the common understanding of that term or that meaning as further employed in ss 126J and 126K of the Evidence Act. Although he may have complied with some of the standards normally expected of a “journalist” in one of the publications made via his “Twitter account”, his conduct in the use of the platform viewed in its entirety strips him of that characterisation. As put in oral submissions advanced on behalf of Mr Kumova, albeit now loosely and more generally expressed, Mr Davison “cannot be a journalist one day but not the next…” Although it may be accepted that a “Twitter account” or “Twitter feed” may in some circumstances constitute a “news medium” for the purposes of s 126J(1), on the facts of the present case it has been further concluded that Mr Davison’s “Twitter account” cannot be so characterised. It has not been able to be concluded that his “Twitter account” can be so described in circumstances where its self-professed purpose is to make known “cynical and cranky opinions”, and where the account also publishes substantial amounts of material which can in no sense be described as “news”. Nor has it been able to be concluded, on the balance of probabilities, that Mr Davison has discharged the onus upon him of bringing himself within the terms of s 126K(1). Even if it were to be accepted that a promise was at some stage made, the facts are equivocal as to whether that promise was made after or before the information was communicated. These conclusions, it will be noted, depend very much upon the peculiar facts of the present proceeding. Those who drafted the legislative amendments to the Evidence Act clearly contemplating, as do the terms of the Act itself, that there remain many cases in which it will remain a task for judicial resolution to determine whether the privilege applies or not. It may finally be noted that it was agreed at the conclusion of the hearing that the proceeding would benefit from a Court ordered mediation before a Registrar of this Court. An order to that effect should be made. So, too, should an order be made that the costs of the present proceeding follow the event.THE ORDER OF THE COURT IS:The parties are to bring in short minutes of orders to give effect to these reasons within fourteen days.

Ratio Decidendi

Legal Principle Established

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