Liu v The Age Company Ltd - [2012] NSWSC 12

Supreme Court

New South Wales

Medium Neutral Citation: Liu v The Age Company Limited [2012] NSWSC 12
Hearing dates: 11, 12 October 20101, 2, 3, 4, 9, 10, 11, 17 February 2011written submissions closed 25 February 2011
Decision date: 01 February 2012
Before: McCallum J
Decision:
Orders made for preliminary discovery under rule 5.2 of the Uniform Civil Procedure Rules 2005

Catchwords:
CONSTITUTIONAL LAW - implied freedom of communication on matters of government and politics - power to order preliminary discovery under rule 5.2 of the Uniform Civil Procedure Rules 2005 - whether rule 5.2 authorises orders in respect of the identity of a confidential source who has provided information to a journalist for use in a publication about government or political matters - whether the newspaper rule is of absolute effect in protecting the journalist against such an order in the case of communication on matters of government and politics
PRACTICE AND PROCEDURE - preliminary discovery - publication amounting to communication on matters of government and politics - alleged defamation of plaintiff - plaintiff seeking identification of journalists' confidential sources - where journalists alleged to have been provided with forged documents - whether discretion enlivened - discretionary factors
Legislation Cited: Defamation Act 2005
Evidence Act 1995
Judiciary Act 1903 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 199
British Steel Corporation v Granada Television LimitedI [1981] AC 1096
Broome v Cassell & Co Ltd [1972] AC 1027
Coleman v PowerI (2004) 220 CLR 2
John Fairfax & Sons Ltd v Cojuangco (1987) 8 NSWLR 145
John Fairfax & Sons Limited v Cojuangco (1988) 165 CLR 346
John Fairfax Publications Pty Limited v Doe 91995) 37 NSWLR 81
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Levy v Victoria (1997) 189 CLR 579
Liu v The Age Company [2010] NSWSC 1176
Liu v The Age Company Ltd [2011] NSWSC 53
McGuinness v Attorney-General (Vic) (1940) 63 CLR 73
Morton v Nylex Limited [2007] NSWSC 562
Nagle v Chulov [2001] NSWSC 9
NRMA v John Fairfax Publications Pty Limited [2002] NSWSC 563
Roads and Traffic Authority of New South Wales v Australian National Carparks Pty Ltd [2007] NSWCA 114
Sims v Wran [1984] 1 NSWLR Stephens v West Australian Newspapers Limited [1994] HCA 45; (1994) 182 CLR 211
Theophanous v Herald & Weekly Times [1994] HCA 46; (1994) 182 CLR 104
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Webb v Bloch (1928) 41 CLR 331
Category: Principal judgment
Parties: Helen Liu (plaintiff)
The Age Company Ltd (first defendant)
Richard Baker (second defendant)
Phillip Dorling (third defendant)
Nick McKenzie (fourth defendant)
Attorney-General (NSW) (Intervening pursuant to s78A of the Judiciary Act 1903)
Representation: B McClintock SC and G Rubagotti (plaintiff)
T Blackburn SC, ATS Dawson and L Brown (defendants)
M Sexton and S Free (Attorney-General (NSW)) (Intervening pursuant to s78A of the Judiciary Act

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: [2012] NSWSC 12
Decision Date: 01 February 2012

CaseChat Overview and Summary

In the case of Liu v The Age Company Ltd, the plaintiff, Mr Liu, brought proceedings against the defendant, The Age Company Ltd, a publisher of a daily newspaper, in the Federal Court of Australia. Mr Liu alleged that the defendant had defamed him through a series of articles published in its newspaper. He sought to identify the confidential sources of the journalists who had written the articles as part of his defamation action. The defendant opposed the plaintiff's application for discovery, arguing that the Uniform Civil Procedure Rules 2005 do not allow for such orders, particularly when the communication pertains to government or political matters. The court was required to determine whether rule 5.2 of the Uniform Civil Procedure Rules 2005 authorised orders for the discovery of the identity of confidential sources in cases involving communications on matters of government or politics. Additionally, the court needed to assess whether the newspaper rule, which protects journalists from such discovery orders, applied absolutely in these circumstances.

The court found that the newspaper rule did not have an absolute effect in protecting journalists against discovery orders when the communication related to government or political matters. The court reasoned that while the rule provided some protection, it did not preclude the court from exercising its discretion in exceptional circumstances. The court considered the discretionary factors relevant to the exercise of its discretion, including the nature of the communication, the public interest in the matter, and the extent to which the plaintiff's rights were affected. Given that the plaintiff had alleged that the journalists had been provided with forged documents, the court found that the discretion to order preliminary discovery was enlivened. The court concluded that the plaintiff had demonstrated exceptional circumstances warranting an order for discovery of the journalists' confidential sources.

The court ordered that the identity of the journalists' confidential sources be disclosed to Mr Liu, subject to certain conditions to protect the sources' confidentiality. This decision highlights the balance between the protection of journalists' sources and the plaintiff's right to defend defamation claims, particularly in cases involving communications on matters of government or politics. The court's decision underscores the importance of considering the public interest and the specific circumstances of each case when exercising discretion under rule 5.2 of the Uniform Civil Procedure Rules 2005.

Orders