Liu v The Age Company Ltd

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Court of Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Liu v The Age Company Limited [2016] NSWCA 115
Hearing dates:4 and 5 February 2016
Date of orders: 20 May 2016
Decision date: 20 May 2016
Before: Beazley P at [1], McColl JA at [17], Ward JA at [283]
Decision:

(1)   Grant the appellant leave to appeal.
(2)   Direct the appellant to file the notice of appeal in the form of the draft in the White Book within fourteen (14) days.
(3)   Appeal allowed in part with costs.
(4)   Set aside the stay order made on 23 March 2015 and continued on 22 May 2015.
(5)   Grant the cross-appellants leave to appeal.
(6)   Cross-appellants to file the notice of cross-appeal in the form of the draft in the White Book within fourteen (14) days.
(7)   Dismiss the cross-appeal with costs.

Catchwords: PRACTICE – preliminary discovery – intended defamation proceedings against newspaper defendant and its sources of information – contested hearing of preliminary discovery application – order made compelling identification of newspaper defendants’ sources – where judgment making order subject of unsuccessful appeal and unsuccessful High Court special leave application at newspaper defendant’s behest – where following failed appellate steps newspaper defendant sought stay of preliminary discovery order – newspaper defendant undertook as condition of stay not to rely on defences of qualified privilege – where newspaper defendant conceded undertaking could have been given at first hearing – no explanation for failure to give undertaking either outright or conditionally at that hearing – stay granted following second contested hearing – whether error in granting stay
PRACTICE – preliminary discovery – interlocutory orders – application to stay preliminary discovery order following trial, appeal to Court of Appeal and unsuccessful special leave application – stay application led to second contested hearing – whether stay application should have been entertained – Civil Procedure Act 2005 (NSW), ss 56 - 60
DEFAMATION – preliminary discovery – newspaper rule – whether “effective remedy” once newspaper defendant undertook not to rely on defences of qualified privilege – interests of justice
COSTS – preliminary discovery – application for preliminary discovery order conducted by newspaper defendant in adversarial manner – whether primary judge’s exercise of costs discretion miscarried – whether exception to costs follow the event rule for newspaper defendant resisting discovery of sources’ identity – Civil Procedure Act 2005 (NSW), s 98 – Uniform Civil Procedure Rules 2005 (NSW), 42.1
COSTS – costs of preliminary discovery hearing – whether primary judge should have awarded applicant costs on indemnity basis – whether newspaper defendant’s conduct “plainly unreasonable”
WORDS AND PHRASES – “effective remedy” – “necessary in interests of justice”
Legislation Cited: Civil Procedure Act 2005 (NSW)
Civil Procedure Rules 1998 (UK)
Competition and Consumer Act 2010 (Cth), Australian Consumer Law
Court Procedure Rules 2006 (ACT)
Defamation Act 1974 (NSW)
Defamation Act 2005 (NSW)
Evidence Act 1995 (NSW)
Limitation of Actions Act 1958 (Vic)
Motor Accidents Act 1988 (NSW)
Supreme Court Act 1970 (NSW)
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Details
Case
[2016] NSWCA 115
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal and cross-appeal from an order of a single judge of the Supreme Court of New South Wales. The appellant, Ms. Liu, had sought preliminary discovery against The Age Company Ltd (the newspaper) and its sources in contemplation of defamation proceedings. An order was made compelling the identification of the newspaper's sources, which was unsuccessfully appealed by the newspaper. Following these appellate steps, the newspaper sought a stay of the preliminary discovery order, undertaking not to rely on qualified privilege defences as a condition of the stay. This stay was granted after a second contested hearing. The appeal concerned whether the judge erred in granting this stay.

The central legal issues before the Court of Appeal were whether the judge had erred in granting the stay of the preliminary discovery order, particularly in light of the newspaper's prior unsuccessful attempts to resist discovery and its concession that the undertaking could have been given earlier. The court also considered whether the stay application should have been entertained at all, given the procedural history. Further issues related to the "newspaper rule" and whether the undertaking provided an "effective remedy" in the interests of justice, as well as the appropriate costs orders for the preliminary discovery proceedings and the stay application, including whether the newspaper's conduct warranted an indemnity basis for costs.

The Court of Appeal allowed the appeal in part, setting aside the stay order. The court reasoned that the newspaper's conduct in seeking the stay after a series of unsuccessful challenges to the preliminary discovery order, without a satisfactory explanation for the delay in providing the undertaking, demonstrated an error in the exercise of the judge's discretion. The court found that the undertaking, while relevant, did not sufficiently justify the granting of a stay in these circumstances, particularly given the prior adversarial approach taken by the newspaper. The cross-appeal was dismissed.

Orders

Orders of the court

(1) Grant the appellant leave to appeal.

(2) Direct the appellant to file the notice of appeal in the form of the draft in the White Book within fourteen (14) days.

(3) Appeal allowed in part with costs.

(4) Set aside the stay order made on 23 March 2015 and continued on 22 May 2015.

(5) Grant the cross-appellants leave to appeal.

(6) Cross-appellants to file the notice of cross-appeal in the form of the draft in the White Book within fourteen (14) days.

(7) Dismiss the cross-appeal with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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