JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 SEPTEMBER 2015
DATE OF JUDGMENT:	9 DECEMBER 2015
CASE MAY BE CITED AS:	MADAFFERI V THE AGE
MEDIUM NEUTRAL CITATION:	[2015] VSC 687

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EVIDENCE – Journalist’s privilege – Relevant considerations for declaring a journalist compellable to disclose confidential sources – Nature of public interest in disclosure – Nature of public interest in investigative journalism – Whether adverse consequences likely from disclosure – Considerations applicable to balancing these interests – s 126J, 126K, 131A, Division 1C of Part 3.10, Evidence Act 2008 (Vic).

TORT – Defamation – Defence of qualified privilege – Section 30 Defamation Act2005 (Vic) and Lange qualified privilege defence – Whether reliance on confidential sources a striking feature of the defence – Consequences for defence of claiming journalist’s privilege considered.

PRACTICE AND PROCEDURE – Preliminary discovery to identify a prospective defendant – Whether applicant has shown reasonable cause to believe that he has or may have the right to obtain relief against a journalist’s confidential source – Discretionary considerations – Journalist’s privilege.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms G Schoff QC with Mr M Marcus	WMB Lawyers
For the Defendants	Dr MJ Collins QC with Mr HR Hassan	Minter Ellison

HIS HONOUR:

Background

In this proceeding, the plaintiff claims that he was defamed by imputations conveyed in twelve articles (the articles) published by the first defendant (in the print edition of The Age) and/or the sixth defendant (on The Age website and the Sydney Morning Herald website). The second to fifth defendants are journalists who are the authors of the articles. Mr Nick McKenzie, the second defendant, is a principal author of the articles.

The articles are related to investigations by these journalists into allegations of criminal misconduct involving the Calabrian community in Australia, which allegations refer to the plaintiff and his brother. The plaintiff claims that the publications convey very serious defamatory imputations against him of violent criminal conduct, including murder, extortion and drug trafficking. They claim the plaintiff is the head of the mafia in Melbourne. The defendants do not plead justification and accordingly the truth or falsity of the imputations is not in issue.[1] The plaintiff also claims for breach of confidence relating to articles in the print edition of The Age and on the websites concerning meetings between the plaintiff and the Hon. Mr Bill Gillard QC to discuss the plaintiff’s private legal affairs.
[1]The Age Co Ltd v Elliot (2006) 14 VR 375, 378.

The defendants have pleaded qualified privilege defences in relation to all of the articles, being the statutory defence (s 30 Defamation Act 2005 (Vic)) and in respect of some articles the common law qualified privilege defence based on the implied constitutional freedom of communication on matters…

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.

Continue reading Madafferi v The Age Company Ltd

Details

AGLC: Madafferi v The Age Company Ltd [2015] VSC 687
Case: [2015] VSC 687
Decision Date: 9 DECEMBER 2015

CaseChat Overview and Summary

In the Supreme Court of Victoria, Madafferi sought to compel the disclosure of confidential sources from a journalist employed by The Age Company Ltd, as part of a defamation action. The central issue revolved around the applicability of journalist’s privilege under the Evidence Act 2008 (Vic) and how this privilege balanced against the public interest in disclosure. The court was tasked with determining the relevant considerations for compelling a journalist to reveal their confidential sources, particularly in the context of defamation claims.

The court examined the statutory framework provided by sections 126J, 126K, 131A, and Division 1C of Part 3.10 of the Evidence Act 2008 (Vic). It was necessary to weigh the public interest in the disclosure of confidential sources against the public interest in investigative journalism. The court considered whether adverse consequences would likely arise from the disclosure and what factors should be applied in this balancing exercise. Additionally, the court explored the implications of relying on confidential sources for the defence of qualified privilege in defamation cases, as outlined in section 30 of the Defamation Act 2005 (Vic).

In its reasoning, the court found that the public interest in protecting confidential sources was paramount, particularly in the context of investigative journalism. The court held that compelling a journalist to disclose their sources should only be done in exceptional circumstances where the public interest in disclosure substantially outweighed the interest in maintaining confidentiality. The court also noted that the reliance on confidential sources could affect the defence of qualified privilege in defamation cases. Ultimately, the court exercised its discretion under the Evidence Act and decided that the applicant had not demonstrated sufficient grounds to compel the disclosure of the journalist’s confidential sources.

As a result of the court’s decision, the application for the journalist to be compelled to disclose their confidential sources was dismissed. The court’s ruling underscored the importance of protecting investigative journalism and the confidentiality of sources, while also highlighting the stringent criteria that must be met to override this privilege.

Orders