Liu v The Age Company - [2010] NSWSC 1176

CITATION: Liu v The Age Company & Ors [2010] NSWSC 1176

HEARING DATE(S): 11 October 2010 to 12 October 2010

JUDGMENT DATE :
14 October 2010

JUDGMENT OF: McCallum J

DECISION: Publication of reasons for granting adjournment and evidentiary rulings

CATCHWORDS: PRACTICE AND PROCEDURE - application for preliminary discovery seeking identification of journalists' sources - whether an interlocutory proceeding - where defendants sought to rely on evidence on information and belief from the very sources the identification of whom is sought in the proceeding without identifying those sources - whether such evidence admissible under the exception to the hearsay rule in s75 of the Evidence Act - reasons for granting adjournment enabling both parties to address by direct evidence matters previously sought to be proved only by evidence on information and belief

LEGISLATION CITED: Uniform Civil Procedure Rules
Civil Procedure Act 2005
Limitation Act 1969
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: Levis v McDonald (1997) 75 FCR 36
Hall v Nominal Defendant (1966) 117 CLR 423
Ex Parte Britt (1987) 1 Qd R 221
Herald & Weekly Times Ltd v Guide Dog Owners & Friends Assoc [1990] VR 451
Brouwer v Titan Corp Ltd (1997) 73 FCR 241
London Economics (Aust) Pty Ltd v Frontier Economics Pty Ltd [1999] FCA 932
Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2007] FCA 156
Bray v F Hoffman-La Roche Limited [2002] FCA 243
Wily v Terra Cresta Business Solutions Pty Ltd [2006] NSWSC 949
New South Crime Commission v Vu [2009] NSWCA 349
John Fairfax and Sons Limited v Cojuangco (1988) 165 CLR 346

PARTIES: Helen Liu
The Age Company Ltd
Richard Baker
Phillip Dorling
Nick McKenzie

FILE NUMBER(S): SC 2010/224488

COUNSEL: B. McClintock and G. R. Rubagotti (Plaintiff)
T. D. Blackburn SC and A.T.S. Dawson (Defendants)
M. Sexton and S. Free (Attorney-General (NSW))

SOLICITORS: Kennedys Lawyers (Plaintiff)
Minter Ellison (Defendants)
Crown Solicitor (Attorney-General (NSW))

- 16 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

14 OCTOBER 2010

10/224488 Helen Liu v The Age Company Limited & Ors

JUDGMENT

1 HER HONOUR: Ms Helen Liu is a businesswoman. On 3 February 2010, an article was published in The Age newspaper alleging that she had paid $150,000 to Mr Joel Fitzgibbon, a member of Federal Parliament, in circumstances suggesting corruption. The article reported that The Age had obtained Ms Liu’s “private records” and cited some of those records to support the allegations it published against Ms Liu.

2 Ms Liu contends that at least two of the documents obtained by The Age and expressly referred to in the article were forged or falsified by a person whose identity is not known to her. The present proceeding is an application brought by summons under Part 5.2 of the Uniform Civil Procedure Rules seeking orders directed to enabling Ms Liu to identify the person or persons who provided those and other documents to The Age. The effect of the orders sought is to compel the three…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWSC 1176
Decision Date: 14 October 2010

CaseChat Overview and Summary

The plaintiff, Liu, brought an application in the Federal Court of Australia against The Age Company, seeking preliminary discovery of the identity of journalists' sources. The dispute arose from an article published by the defendant which contained allegations of wrongdoing against the plaintiff. Liu sought to identify the sources to facilitate his ability to respond to the allegations and defend himself against any potential defamation action. The court was tasked with determining whether the application constituted an interlocutory proceeding and whether the defendants could rely on evidence on information and belief from the sources whose identities were sought in the proceeding.

The court considered whether the application was interlocutory in nature, and whether the defendants could rely on evidence on information and belief. It was established that the application was indeed interlocutory, as it sought information necessary for the plaintiff to respond to the allegations. The court also examined whether the defendants could rely on such evidence without identifying the sources, and whether this was permissible under the hearsay exception in section 75 of the Evidence Act. The court held that the defendants could not rely on evidence on information and belief, and that the application of the hearsay exception was inappropriate in this context. The court further noted that the defendants had not demonstrated any compelling reason to grant the adjournment sought, as the matters could be addressed by direct evidence.

In conclusion, the court granted the plaintiff's application for preliminary discovery of the journalists' sources. The court held that the application was interlocutory in nature, and that the defendants could not rely on evidence on information and belief from the sources. The adjournment was granted to enable both parties to address the matters by direct evidence, rather than evidence on information and belief. The court emphasised the importance of protecting journalistic sources, while also ensuring that the plaintiff had the opportunity to adequately respond to the allegations made against him.

Orders