Poland v Hedley
[2023] WASCA 69
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: POLAND -v- HEDLEY [2023] WASCA 69
CORAM: QUINLAN CJ
MURPHY JA
BEECH JA
HEARD: 6 APRIL 2023
DELIVERED : 2 MAY 2023
FILE NO/S: CACV 52 of 2022
BETWEEN: GREGORY DAVID POLAND
Appellant
AND
KATE HEDLEY
First Respondent
FAIRFAX DIGITAL AUSTRALIA & NEW ZEALAND PTY LTD
Second Respondent
NATHAN JOHN HONDROS
Third Respondent
CLAIRE BRADLEY
Fourth Respondent
DAVID BIRCH
Fifth Respondent
ANDREW WILLIAM HASTIE
Sixth Respondent
ZAK RICHARD FRANCIS KIRKUP
Seventh Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: TOTTLE J
Citation: POLAND -v- HEDLEY [No 4] [2022] WASC 144
File Number : CIV 1370 of 2019
Catchwords:
Practice and procedure - Discovery - Defamation - Where primary judge dismissed application for inspection of communications containing pre‑publication legal advice - Test for waiver of legal professional privilege - Whether conduct of privilege‑holder inconsistent with maintenance of confidentiality which the privilege is intended to protect - No overriding principle of fairness operating at large - Where pleading objectively intended to be relied on as a material part of defence - Whether waiver occurred by filing and serving pleading - Legal professional privilege not resuscitated by deleting pleading
Practice and procedure - Discovery - Defamation - Where primary judge dismissed application to inspect audio recordings of journalists' conversations with confidential source - Nature, scope and application of 'newspaper rule' - Where media defendants pleaded identity of source in a general way to support plea of qualified privilege - Where on materials before primary judge identity of source was known - Whether in interests of justice to preclude plaintiff from accessing record discovered by media defendants of their communications with confidential source - Where disclosure would entail collateral confirmation of confidential source
Practice and procedure - Discovery - Defamation - Where primary judge dismissed application for leave to administer interrogatories that would compel media defendants to reveal identity of journalists' confidential source - Not in interests of justice to disclose identity of confidential source at interlocutory stage
Practice and procedure - Leave to appeal - Legal advice and audio recordings likely to have high degree of forensic significance - Substantial injustice if primary decision left undisturbed
Legislation:
Rules of the Supreme Court 1971 (WA), O 26 r 12, O 27 r 1
Surveillance Devices Act 1988 (WA), s 5(1), s 9(1)
Result:
Leave to appeal granted
Appeal allowed in part
Category: B
Representation:
Counsel:
| Appellant | : | M L Bennett & A Tharby |
| First Respondent | : | M C Goldblatt |
| Second Respondent | : | M C Goldblatt |
| Third Respondent | : | M C Goldblatt |
| Fourth Respondent | : | M C Goldblatt |
| Fifth Respondent | : | M C Goldblatt |
| Sixth Respondent | : | M C Goldblatt |
| Seventh Respondent | : | M C Goldblatt |
Solicitors:
| Appellant | : | Bennett |
| First Respondent | : | Carmel Galati |
| Second Respondent | : | Carmel Galati |
| Third Respondent | : | Carmel Galati |
| Fourth Respondent | : | Carmel Galati |
| Fifth Respondent | : | Carmel Galati |
| Sixth Respondent | : | Carmel Galati |
| Seventh Respondent | : | Carmel Galati |
Case(s) referred to in decision(s):
Alcoa of Australia Ltd v Apache Energy Ltd [2014] WASCA 148
Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; (2019) 55 WAR 366
Attorney‑General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475
Australian Reliance Group Pty Ltd v Coverforce Insurance Brokers Victoria Pty Ltd [No 3] [2017] WASC 60
BrisConnections Finance Pty Ltd v Arup Pty Ltd [2016] FCA 438
Broadcasting Corporation of New Zealand v Alex Harvey Industries Ltd [1980] 1 NZLR 163
Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341
Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64; (1920) 28 CLR 305
Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303
Hadid v Lenfest Communications Inc (1996) 70 FCR 403
Herald & Weekly Times Ltd v Guide Dog Owners' & Friends' Association [1990] VR 451
Hodder v Queensland Newspapers Pty Ltd [1994] 1 Qd R 49
Hongkong Bank of Australia Ltd v Murphy [1993] 2 VR 419
House v The King [1936] HCA 40; (1936) 55 CLR 499
John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; (1988) 165 CLR 346
Liu v The Age Company Ltd [2016] NSWCA 115; (2016) 92 NSWLR 679
Madafferi v The Age [2015] VSC 687
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
McGuinness v Attorney‑General (Vic) [1940] HCA 6; (1940) 63 CLR 73
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275
Pickering & Pickering v Edmunds, Edmunds & Smoothpool Nominees (1994) 63 SASR 357
Poland v Hedley [2019] WASC 403
Poland v Hedley [No 4] [2022] WASC 144
R v Dunwoody [2004] QCA 413; (2004) 212 ALR 103
Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2023] WASCA 45
Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347
Torcasio Developments Pty Ltd v County Park Developments Pty Ltd (Unreported, VSC, 9 September 1991)
Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [2019] WASC 154
West Australian Newspapers Ltd v Bond [2009] WASCA 127
Woodside Petroleum Development Pty Ltd v H & RE & W Pty Ltd (Unreported, WASC, 3 October 1997)
JUDGMENT OF THE COURT:
Introduction
The appellant (Mr Poland) seeks leave to appeal and to appeal against orders made by Tottle J on 29 April 2022 pursuant to the learned judge's decision in Poland v Hedley [No 4][1] (primary decision). The learned primary judge dismissed Mr Poland's applications for inspection of certain documents and leave to administer interrogatories in the primary proceedings. The primary proceedings involve claims made by Mr Poland against the first ‑ third respondents (media parties) and the fourth ‑ seventh respondents in relation to two articles, published on 27 February and 28 February 2019, alleged to be defamatory of Mr Poland. Mr Poland also alleges the tort of conspiracy in the primary proceedings.
[1] Poland v Hedley [No 4] [2022] WASC 144.
At all material times, the second respondent (Fairfax) carried on business as an internet news service, for which the first respondent (Ms Hedley) was the deputy editor and the third respondent (Mr Hondros) was a journalist.
Background
It was common ground that on 15 January 2019, Mr Poland, who at the time was the Deputy Chair of the Peel Development Commission (PDC), attended a meeting at a restaurant in the Subiaco Hotel with a local business owner, Mr Grainger, his wife Mrs Grainger, and a representative of the PDC (meeting). The meeting was recorded (recording).
Mr Hondros deposed that he was contacted by a regular confidential source (Source A), who informed Mr Hondros that a copy of the recording would be sent to him. Shortly after this, Mr Hondros received a recording of the meeting. Mr Hondros listened to the recording and recognised Mr Poland as one of the speakers. In his affidavits before the primary judge,[2] Mr Hondros deposed that this communication with Source A occurred on or about 25 January 2019. In an affidavit sworn 12 July 2022, for the purposes of this appeal, he corrected those statements and said that he was contacted by Source A on 25 February 2019 (and not 25 January 2019).
[2] Sworn 27 September 2019 and 25 January 2022.
Mr Hondros deposed that on or about 27 February 2019, he and Ms Hedley spoke with another confidential source (Source B). Source B said that the meeting took place at the Subiaco Hotel between Mr Poland, Mr Grainger, and two others. Source B told Mr Hondros and Ms Hedley that they (Source B) had attended the meeting and recorded the conversation of the meeting. Mr Hondros said that if he were to disclose the purpose for which the recording was made by Source B, it would disclose the identity of Source B.
On 27 February 2019, Mr Hondros and Ms Hedley prepared various versions of an article based on things allegedly said by Mr Poland at the meeting. Mr Hondros and Ms Hedley wrote a further article on 28 February 2019 also based on things allegedly said at the meeting. The media parties published the articles.
The primary proceedings
In the primary proceedings, Mr Poland alleged that the first article gave rise to imputations that he:
9.1is corrupt in that he arranges secret deals between the State government and private business people without due process;
9.2exerts improper political influence over members of the State government; and
9.3as Deputy Chair of the PDC, failed to act in the interests of the Peel region by promoting the dumping of toxic soil within the region.
In relation to the second article, Mr Poland alleged that it gave rise to imputations that he:
15.1falsely exaggerates boasting about his political influence; and
15.2exerts improper political influence over members of the State government.
Mr Poland pleads at par 17 of his substituted statement of claim that the media parties' conduct has been improper, unjustifiable and lacking in bona fides in a manner which has aggravated the hurt, damage and distress suffered by Mr Poland. The matters on which Mr Poland relies as aggravating conduct include the plea at par 17.11 that the media parties published the first article, the second article and a further article (which itself is relied upon as aggravating conduct) in breach of s 9(1) of the Surveillance Devices Act 1988 (WA).[3]
[3] Section 9(1) of the Surveillance Devices Act provides:
Mr Poland also alleges that the fourth ‑ sixth respondents, by providing a copy of the recording to the media parties, conspired to cause him harm by unlawful means through the receipt and use of a recording made allegedly in breach of the Surveillance Devices Act. Mr Poland makes similar allegations in relation to conspiracy against the media parties. Mr Poland seeks exemplary damages for this cause of action.
Prior to the joinder of Mr Hondros, Ms Hedley and Fairfax filed an amended defence on 1 August 2019. In their amended defence, they included a plea as to qualified privilege, including on the basis that the conduct of Fairfax and Ms Hedley in publishing the first article was reasonable in the circumstances, including with reference to legal advice which they had obtained and in accordance with which they had acted.[4] The particulars to this plea included the following:[5]
[4] Amended defence 1 August 2019, par 19(c).
[5] Amended defence 1 August 2019, par 19 (particulars 5(j) - (k)).
5The conduct [of Fairfax and Ms Hedley] was reasonable in the circumstances, in that:
…
(c)[They] were satisfied as to the authenticity and accuracy of the sources of information available in preparing the First Article;
…
(j)At the time of publication of the First Article, [Fairfax and Ms Hedley] had conducted the following enquiries and/or had the following information in their possession:
(i)On or about 25 February 2019 [they] received from a confidential source (Confidential Source 1) [the recording].
…
(iv)On or about 27 February 2019, [Ms Hedley] and Mr Hondros had a telephone call with [Source B], a participant in the [meeting], who confirmed that the contents of the audio recording accurately reflected the discussion which occurred at the [meeting].
…
(xiv)[Fairfax and Ms Hedley] sought and obtained legal advice in respect of the publication of the First Article, and acted in accordance with that advice. [They] claim legal privilege in respect of the substance of the advice.
(k)[Fairfax and Ms Hedley] believed, and the fact was that:
(i)the nature and scope of [their] enquiries were reasonable in the circumstances, and included seeking and obtaining responses from [Mr Poland] to other information which had been obtained;
(ii)the sources of the information they obtained were, by their very nature, authoritative, authentic and accurate;
(iii)the First Article fairly and accurately summarised the information in [their] possession;
(iv)on the basis of the information in their possession, [they] believed that what was published in the First Article was true. (emphasis added)
In their amended defence filed 1 August 2019, Fairfax and Ms Hedley also pleaded that the second article was published on an occasion of qualified privilege, and relied on the same particulars as those pleaded in support of the qualified privilege defence in respect of the first article, as well as other matters.[6]
[6] Amended defence 1 August 2019, par 21 (particulars 5(j) - (k)).
Mr Hondros subsequently joined in the defences relied on by Ms Hedley and Fairfax.
It was submitted by counsel for Mr Poland, without dispute by counsel for the media parties,[7] that (1) Mr Poland, in February 2021, sought inspection of the documents with respect to the legal advice pleaded by the media parties, (2) inspection was denied on the grounds of a claim for legal professional privilege, (3) there was further conferral between the parties in July 2021 in which the claim for privilege was maintained, and (4) the media parties, in their further re‑amended defence filed on 9 November 2021, deleted the earlier pleas that they had sought and obtained, and acted in accordance with, legal advice. Otherwise, after the amendment on 9 November 2021, the media parties' defence in relation to qualified privilege was substantially the same as the earlier pleas.
[7] Appeal ts 48.
It was common ground that the plea by the media parties of obtaining and acting in accordance with legal advice stood for around 27 months, including at a time when the parties went to mediation with a view to settling the litigation. It was also not in dispute that following the deletion of the plea relating to legal advice, the media parties continued to list the documents concerning the legal advice as relevant to the issues in the proceedings in their lists of documents.
The fourth ‑ seventh defendants have yet to file their defences.
The interlocutory applications
Inspection application
Pursuant to O 26 r 12 of the Rules of the Supreme Court 1971 (WA) (Rules) Mr Poland sought inspection of certain documents listed in affidavits of discovery by the media parties. The documents sought comprised two categories:
1.Pre‑publication legal advice in the form of emails exchanged between Ms Hedley and an 'in-house' lawyer that was, at the time, relied upon by the media parties in their pleaded defence of qualified privilege; and
2.audio recordings of two telephone conversations that took place on 27 February 2019 between Mr Hondros, Ms Hedley, and Source B (Source B audio recordings).
As regards the first category, it was accepted that the documents were the subject of legal professional privilege as they contained pre‑publication legal advice. Mr Poland contended that the privilege had been waived.
As regards the second category, the media parties contended that the Source B audio recordings were privileged by operation of s 20I of the Evidence Act 1906 (WA). They also relied on the common law 'newspaper rule' and contended that it was not in the interests of justice to disclose the identity of Source B at an interlocutory stage.[8]
Interrogatories application
[8] Primary decision [70].
Mr Poland also sought orders pursuant to O 27 r 1 of the Rules for leave to administer interrogatories to Fairfax and Mr Hondros. The interrogatories effectively sought to compel Fairfax and Mr Hondros to identify Source A.
Primary decision - inspection application - legal advice
The parties' contentions before the primary judge
Mr Poland contended that whilst the pre-publication legal advice was privileged when given, the privilege was waived by the pleas made in support of the qualified privilege defences in respect of both articles. Mr Poland contended, relying on the principle in Mann v Carnell,[9] that by pleading and relying on the pre-publication legal advice in support of the qualified privilege defences, the media parties acted in a manner inconsistent with the maintenance of any claim for privilege in respect of the advice. Once waived, the privilege was not capable of being restored. The qualified privilege pleas that relied on the pre-publication advice had been part of the media parties' defences for 27 months, in which time Mr Poland's claims had been the subject of a mediation. Having supported their case by relying on the pre-publication advice, the media parties could not now withdraw the waiver.
[9] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 [29] (Gleeson CJ, Gaudron, Gummow & Callinan JJ). Reference was also made to Australian Reliance Group Pty Ltd v Coverforce Insurance Brokers Victoria Pty Ltd [No 3] [2017] WASC 60.
The media parties submitted that:
1.Mr Poland's contentions did not recognise the distinction between waiver of legal professional privilege by disclosure (disclosure waiver) and waiver by putting in issue the substance of privileged communications (issue waiver).
2.This was not a case in which the content of the privileged communications had been disclosed - it was an issue waiver case.
3.Disclosure of privileged communications would only be ordered when it is necessary to do justice between the parties, and questions of waiver must be assessed by reference to the issues to be determined at trial. Reference was made to various authorities, including Hongkong Bank of Australia Limited v Murphy[10] and Pickering & Pickering v Edmunds, Edmunds & Smoothpool Nominees.[11]
4.The media parties further contended that their further re‑amended defence placed no reliance on the pre‑publication advice. The question of whether the media parties acted reasonably was no longer an issue that involved the pre‑publication advice. Therefore the interests of justice did not require that Mr Poland be permitted to inspect the pre‑publication advice.
The judge's findings
[10] Hongkong Bank of Australia Ltd v Murphy [1993] 2 VR 419, 437.
[11] Pickering & Pickering v Edmunds, Edmunds & Smoothpool Nominees (1994) 63 SASR 357.
Having referred to various authorities, including Mann, Australian Reliance and BrisConnections Finance Pty Ltd v Arup Pty Ltd,[12] the judge said:[13]
[42]It is clear from the authorities to which I have referred that the object of the guiding principle is to avoid the unfairness that would result from a party being permitted to deploy privileged communications in such a way that made express or implied assertions about their content while at the same time maintaining the confidentiality of those communications.
[43]The guiding principle does not require that the concept of waiver be applied with the rigid approach for which [Mr Poland] contended, that is, once the privileged communications are deployed, privilege is waived irrevocably. Each case must be determined on its own facts and if a party does not persist in the deployment of the privileged communications this may be sufficient to remove the unfairness that the principle aims to prevent.
[44]If the media [parties] had not amended their defence to remove the reference to the pre-publication legal advice they would have continued to conduct their defence in a manner that directly put the content of the legal advice in issue. In those circumstances inspection of the privileged documents would have been required.
[45]The guiding principle is focussed primarily on addressing unfairness in the trial process. By amending their defence to cease to rely on the pre‑publication advice the media [parties] have removed the unfairness that would otherwise have arisen if such reliance had been maintained through to and at trial. I am not persuaded that the media [parties'] reliance on the pre‑publication advice in their defence between August 2019 and November 2021 is a sufficient basis to hold that privilege has been waived irrevocably.
[46]For those reasons I am not prepared to order inspection of the pre‑publication advice.
[47]Further, in the light of the amendment to the media [parties'] defence removing reliance on the pre-publication advice, case management principles weigh against ordering inspection of the pre‑publication advice. Defamation actions are all too often bedevilled by interlocutory disputes that are of minor forensic significance but are disproportionately time consuming and expensive. Not only is inspection no longer necessary because the documents are no longer relevant but I fear that if made available for inspection the pre publication legal advice would become the focus of further interlocutory disputation.
[12] BrisConnections Finance Pty Ltd v Arup Pty Ltd [2016] FCA 438.
[13] Primary decision [42] - [47].
The primary decision - the inspection application - Source B audio recordings
The evidence
Source B
The Source B audio recordings were listed as documents over which privilege was claimed in the lists of documents filed on 3 August 2020 and 9 November 2021.[14] The 9 November 2021 list was verified by an affidavit sworn by Mr Hondros in which he deposed to the effect that the 9 November 2021 list had been made 'for the purpose of elaborating on the privilege claims that were made' in the earlier lists and affidavits that verified them.[15] The claim for privilege in respect of the Source B audio recordings was expressed as follows:[16]
The content of the audio recordings would disclose the identity of an informant of [Ms Hedley, Fairfax and Mr Hondros], or would enable that identity to be ascertained, and [Ms Hedley and Mr Hondros] (and through them [Fairfax]) made a promise, orally, to the informant not to disclose their identity, entitling [Ms Hedley, Fairfax and Mr Hondros] to object to inspection of the audio recording by reason of the operation of section 20I of the [Evidence Act].
[14] Affidavit of Kate Hedley affirmed 3 August 2020; affidavit of Larina Alick affirmed 3 August 2020; affidavit of Nathan John Hondros sworn 3 August 2020; affidavit of Kate Hedley affirmed 9 November 2021; affidavit of Larina Alick affirmed 9 November 2021; affidavit of Nathan John Hondros sworn 9 November 2021. In these affidavits, Source B was referred to as 'confidential source 2 (CS‑2)'.
[15] Affidavit of Nathan John Hondros sworn 9 November 2021, par 2.
[16] Affidavit of Nathan John Hondros sworn 9 November 2021, attachment A, page 6.
The media parties relied on affidavits sworn by Mr Hondros on 27 September 2019 and 17 January 2022 and on an affidavit affirmed by Ms Hedley on 17 January 2022.
In his affidavit of 27 September 2019, Mr Hondros relevantly deposed:[17]
12.On or around 27 February 2019, I spoke with [Source B]. Source B stated that Source B would speak to me on the condition that I would not disclose Source B's identity as the source of the information Source B would give me. I said to Source B that I accepted that condition and thereafter Source B continued to speak to me. Source B informed me, which I verily believe to be true, that a meeting took place at the Subiaco Hotel between [Mr Poland], Mr Grainger and two others identified as participants of that meeting.
13.Source B then informed me, which I verily believe to be true, that Source B attended the meeting with [Mr Poland] in the restaurant area at the Subiaco Hotel and recorded the conversation at the meeting. As to the purpose for which the [recording] was made by Source B, if I disclosed that purpose in this affidavit, it would disclose the identity of Source B. Source B informed me, which I verily believe to be true, that:
i. Source B will give evidence at trial, if subpoenaed by the [media parties]; and
ii.the evidence Source B will give at trial relates, among other things to the purpose for which the [recording] was made by Source B.
[17] Affidavit of Nathan John Hondros sworn 27 September 2019, pars 12 - 13.
In his affidavit of 17 January 2022, Mr Hondros deposed:[18]
[18] Affidavit of Nathan John Hondros sworn 17 January 2022, pars 3 - 10.
3.On 27 February 2019, in the course of my duties as a journalist for the online publication known as WAtoday, I called the person described as [Source B] in particular 5(l)(iv) of paragraph 21 of the further re‑amended defence filed in these proceedings on 9 November 2021. The call (First Call) was made on speaker phone, in the presence of [Ms] Hedley, … who was, at that time, the deputy editor of WAtoday. A recording of the First Call is [Ms Hedley's, Fairfax's and Mr Hondros'] discovery document number 3.
4.Before Ms Hedley and I had had the opportunity to have any substantive discussions with [Source B] in the First Call, [Source B] stated that they were in a cafe, and asked if they could call back. I indicated that they could and the call disconnected.
5.Approximately 5 minutes later, [Source B] called me (Second Call). Ms Hedley was still with me when the Second Call came in. We took the call on speaker phone, and Ms Hedley was present and participated in the call for its duration. A recording of the Second Call is [Ms Hedley's, Mr Hondros' and Fairfax's] discovery document number 4.
6.Shortly after the Second Call commenced, before anything of substance had been discussed, I said the following to [Source B]:
… you're not the subject of the story, you're not going to be named in the story …
and, a short time later, I said the following to [Source B]:
So, you know, the anonymity that I protect anybody from is the same that applies to you. So no one will know that we've spoken; I'm not going to print your name; it's going to be completely anonymous.
7.Later in the Second Call, I asked [Source B] a question, and I prefaced that question with the words 'just completely off the record'.
8.Later in the Second Call, I said the following to [Source B]:
Alright, well look, just, we never had this conversation but, you know, I mean we're not going to disclose it.
and later still, I said to [Source B]:
Well, the other thing too is, if anybody comes to me and says have you spoken to [Source B]? I say, uh, well no, or did any of this information come from [Source B], I say no. I don't care if that's the Chief Justice of the High Court of Australia.
9.Disclosure of the recordings of the First and Second Calls would enable the listener to determine the identity of [Source B], because of the subject matter of the discussions and because the voice of [Source B] would enable their identity to be ascertained. Even if the voice of [Source B] were to be removed (including in instances where [Source B] is speaking over myself or Ms Hedley, and vice versa, requiring all of the entangled voices to be removed), the identity of [Source B] would still be able to be ascertained from the balance of the recordings.
10.Since the Second Call, I have not been released by [Source B] from the promises to keep [Source B]'s identity confidential and not to disclose it to anyone, which I made to [Source B] on the Second Call.
Ms Hedley's evidence as set out in her affidavit affirmed 17 January 2022 was identical in substance to the evidence contained in Mr Hondros' affidavit of the same date.
Mr Poland relied on an affidavit affirmed on 21 January 2022 by Mr Alexander Tharby, one of his solicitors. Mr Tharby deposed that following the issue and return of a subpoena to Mr Hondros' mobile telephone service, he had inspected Mr Hondros' telephone records. Those records disclosed that a telephone call had been made from Mr Hondros' telephone number to Mr Grainger's telephone number at 1.13 pm on 27 February 2019 and that the call lasted for approximately 50 seconds and that about seven minutes later, a telephone call was made from Mr Grainger's number to Mr Hondros' number and that call lasted for 26 minutes and 8 seconds. On the basis of those records and Mr Hondros' account of his telephone conversations with Source B on 27 February 2019, Mr Tharby believed that Source B was Mr Grainger.
The primary judge's decision - Source B audio recordings
The primary judge referred to s 20G, s 20I, s 20J and s 20K of the Evidence Act. His Honour also referred to the 'newspaper rule' and the observations of Buss JA (as his Honour then was) in West Australian Newspapers Ltd v Bond.[19]
[19] West Australian Newspapers Ltd v Bond [2009] WASCA 127 [9].
His Honour, in dismissing the application, said:[20]
[69]It would have been simpler, of course, for the media [parties] to have expressly invoked the newspaper rule, in addition to s 20I of the Evidence Act as a ground for objecting to production but that they did not do so does not prevent them from relying on the newspaper rule to resist inspection of the audio recordings. The newspaper rule is not a ground of privilege but a rule of practice that 'rests not on a principle of privilege but on the limitations of discovery'. The facts included in the media [parties'] objection to the production are sufficient to attract the operation of the newspaper rule. That the media [parties] referred to s 20I of the Evidence Act and not to the newspaper rule is not a justification for depriving them of the protection afforded by the rule.
[70]I accept the media [parties'] contention that at this interlocutory stage the issue of whether inspection of the [Source B audio recordings] should be allowed is more appropriately determined by reference to the newspaper rule. The journalist protection provisions are directed to the issue of whether a journalist or the person for whom the journalist was working at the relevant time should be compelled to give evidence that would disclose the identity of an informant. The journalist protection provisions may influence how pre-trial processes are managed to make sure that the object of the provisions is not undermined. But the focus of the provisions is the evidence that may be given at trial rather than the process of discovery or other interlocutory processes.
[71]The evidence of [Ms Hedley and Hondros] [establishes] that Source B was a confidential source. [Ms Hedley's] evidence establishes that Source B provided information, which was to the effect that Source B recorded the conversation at the Subiaco Hotel and, inferentially, Source B provided an explanation of why they recorded the conversation. In my view, Source B is a confidential source of information and the newspaper rule applies to the identity of Source B.
[72]I turn to the question of whether it is necessary in the interests of justice to require disclosure of Source B's identity at this interlocutory stage. As recorded earlier when referring to the media [parties'] qualified privilege plea, one of the grounds on which the media [parties] rely to establish that they acted reasonably, is that they confirmed the contents of the audio recording accurately reflected the discussion which occurred at the meeting with 'a participant in the [meeting]'. The universe of participants in the meeting is very small: Mr Grainger, his wife and the PDC representative, and I am not satisfied that it is necessary in the interests of justice for the media [parties] to identify which of these three people is Source B.
[73]Further, [Mr Poland]'s contention that as a matter of fairness and justice, Source B's identity should not be protected is undermined by its contention that Source B has been identified and is Mr Grainger. As I have just noted, the relevant universe is very small. If the state of the evidence at trial is not materially different from the position stated in Mr Tharby's affidavit, it is difficult to discount the possibility that the inference will be drawn that Mr Grainger is Source B.
[74]In the light of the conclusion that I have reached in respect of the application of the newspaper rule, at this stage, it is unnecessary to consider the application of the journalist protection provisions.
[20] Primary decision [69] - [74].
The primary decision - interrogatories application - Source A
Source A - the pleading and the evidence
By its further re‑amended defence filed 9 November 2021, the media parties pleaded, in response to Mr Poland's pleas with respect to aggravating conduct, that 'on or about 25 January 2019 [sic] [Mr Hondros] was contacted by a confidential source who informed him that a recording of a meeting would be sent to him'.[21]
[21] Further re‑amended defence, 9 November 2021, par 17(g)(1).
In his affidavit sworn 27 September 2019, Mr Hondros gave the following evidence about his relationship with Source A:
1.On or around 25 January 2019,[22] he was contacted by Source A who informed him that a recording of a meeting would be sent to him.
2.Source A was a regular informant of Mr Hondros' and the standing arrangement he had with Source A, which had been in place for a number of years, was that he could use the information Source A provided to him, on the condition that he did not disclose Source A's identity as the source of the information Source A had provided to him.
3.The recording arrived shortly afterwards. He played and listened to the recording. The voices on the recording could be heard clearly. There was substantial noise and activity in the background in the vicinity of the meeting.
[22] The date of the contact with Source A was corrected to 25 February 2019 by Mr Hondros in his affidavit in this appeal sworn 12 July 2022.
The recording was an exhibit to his affidavit of 27 September 2019.
In his affidavit sworn 25 January 2022, Mr Hondros deposed:
In or about July 2015, I commenced working as a journalist for Fairfax Media Ltd, the holding company of [Fairfax].
In or about January 2016, in the course of my duties as a journalist for Fairfax Media Ltd, I developed a journalist‑source relationship with the person identified in my affidavit of 27 September 2019 as Source A. …
The relationship between myself and Source A was a relationship maintained in the course of my duties as a journalist. I did not interact with Source A socially and I only contacted Source A, or was contacted by Source A for the purpose of obtaining or receiving information of a sensitive or confidential nature, or in relation to information of a sensitive or confidential nature that I had received from Source A, or to obtain from Source A background information or on the record quotes in relation to articles I was preparing (and to discuss the same).
In or about January 2016, I had a meeting with Source A in which I promised to Source A that going forward I would keep confidential all of our discussions as well as Source A's identity, unless we agreed that Source A would speak on the record. This is the standing arrangement of confidentiality I refer to at paragraph 5 of my affidavit of 27 September 2019.
On or about 25 January 2019, I received a call from Source A (Call). During that conversation, Source A told me that a recording of a meeting (Recording) would be sent to me. Source A gave me no details of who would be sending the Recording to me.
During the Call, or in a subsequent call, Source A sought from me an assurance that I would not identify Source A in connection with the Recording, and I gave Source A that assurance.
In January 2019, I was speaking to Source A regularly and it is for this reason that I cannot recall whether I reassured Source A of maintaining Source A's anonymity in relation to the Recording during the Call, or in a subsequent call at that time.
Source A - the judge's reasons
The judge dismissed the application. His Honour said:[23]
[23] Primary decision [79] - [82].
[79]Three confidential sources are referred to in court documents filed by the media [parties]:
(a)Source A - referred to in [Mr Hondros'] affidavit of 27 September 2019 as a confidential source who told [him] that 'a recording of a meeting' would be sent to him.
(b)Confidential Source 1, who is referred to in the particulars to the qualified privilege plea, as follows:
'On or about 25 February 2019 [Ms Hedley and Fairfax] received from a confidential source (Confidential Source 1) an audio recording of the Meeting.'
(c)A confidential source, referred to in [Mr Hondros'] affidavit evidence sworn on 27 September 2019 as Source B, and referred to in [Ms Hedley's and Mr Hondros'] affidavits affirmed and sworn on 17 January 2022 and the particulars to the qualified privilege plea as 'Confidential Source 2'.
[80]I interpolate that there is some tension between [Mr Hondros'] evidence about the timing of his conversation with Source A and the receipt of the recording on the one hand and with the plea that the recording was received on or about 25 February 2019 which might suggest that Source A is the person referred to in the defences as Confidential Source 1.
[81]The interrogatories are directed solely to ascertaining the identify of Source A. It is relevant to the assessment of whether [Fairfax and Mr Hondros] should be obliged to answer the interrogatories and thereby disclose the identity of Source A that no reliance is placed on the conversation between Source A and [Mr Hondros] that [Mr Hondros] deposes took place 'on or around 25 January 2019'.
[82][Mr Hondros'] affidavit of 27 September 2019 establishes that Source A is a confidential source of [his] who provided him with information. That evidence is sufficient to attract the application of the newspaper rule. As no reliance is placed by the media [parties] on the conversation with Source A for the purpose of qualified privilege plea it is not in the interests of justice to compel the media [parties] to answer interrogatories that would have the effect of disclosing their identity.
Grounds of appeal
Mr Poland's appellant's case contained seven grounds of appeal.
Grounds 1 - 3 of the appeal relate to the first category of the inspection application (legal professional privilege). Grounds 4 and 5 of the appeal relate to second category of the inspection application (Source B audio recordings). Grounds 6 and 7 of the appeal relate to the interrogatories application (Source A identity).
Inspection application - legal professional privilege (grounds 1 ‑ 3)
Ground 1 alleges that the learned judge erred in law by applying a test for waiver of legal professional privilege of unfairness in the trial process,[24] when he ought to have applied a test of whether the conduct was inconsistent with the maintenance of legal professional privilege.
[24] Primary decision [45].
Ground 2 alleges that the learned judge erred in fact by finding that legal professional privilege had not been waived by the media parties,[25] when he ought to have found privilege had been waived.
[25] Primary decision [45].
Ground 3 alleges that the learned judge erred in fact by finding that the documents sought for inspection were not relevant to the proceedings,[26] when he ought to have found that they were relevant.
Inspection application - disclosure of Source B audio recordings (grounds 4 ‑ 5)
[26] Primary decision [47].
Ground 4 alleges that the learned judge erred in law in determining the application on the basis that it was not necessary in the interests of justice for the defendants to disclose the identity of their source,[27] and ought to have found that inspection of the recordings was necessary in the interests of justice.
[27] Primary decision [72].
Ground 5 alleges that the learned judge erred in fact in finding that Source B was a confidential source for the purposes of the newspaper rule,[28] when he ought to have found Source B was not a confidential source.
Interrogatories application - identity of Source A (grounds 6 and 7)
[28] Primary decision [69], [71].
Ground 6 alleges that the learned judge erred in fact in finding that Source A was a confidential source for the purposes of the newspaper rule,[29] when there was no sufficient evidence to support this finding.
[29] Primary decision [82].
Ground 7 alleges that the learned judge erred in fact in finding that the media parties do not rely in their defence on a conversation with Source A,[30] when he ought to have found that they do rely on such a conversation.
[30] Primary decision [81], [82].
The parties' submissions
Mr Poland's submissions
Grounds 1, 2 and 3 - legal professional privilege - waiver
In relation to ground 1, Mr Poland submitted that the focus of the judge was, erroneously, on the 'potential unfairness in the trial process', based on the decisions of Hongkong Bank v Murphy and Pickering v Edmunds. Mr Poland submitted that those cases were decided prior to Mann and do not reflect the current state of the law. He submitted that the judge erroneously reasoned that, as the trial would be conducted on the basis of the media parties' further re‑amended defence, the media respondents had 'removed the unfairness' that would otherwise have persisted. He submitted that the judge erred by elevating '"fairness" to the test by which waiver was to be determined'.
In relation to ground 2, Mr Poland submitted that the judge erred in fact in not finding that the media parties had waived privilege. He submitted that the judge cited no authority for the proposition that waiver was not irrevocable.[31] The jurisprudence generally refers to a privilege having been 'waived', which suggests that waiver is once and for all. Mr Poland referred to R v Dunwoody[32] and Australian Reliance.
[31] Primary decision [45].
[32] R v Dunwoody [2004] QCA 413; (2004) 212 ALR 103 [31].
In relation to ground 3, Mr Poland submitted that if he succeeded on grounds 1 and 2, the legal advice should be produced for inspection. Mr Poland submitted that the judge erred in finding that, by reference to case management principles, the pre‑publication legal advice was no longer relevant.
Grounds 4 and 5 - Source B audio recordings
In relation to ground 4, Mr Poland submitted that the judge erred by refusing to permit inspection of the Source B audio recordings.
Mr Poland submitted that the judge correctly identified that the newspaper rule required a consideration of what was 'necessary in the interests of justice'. He submitted, however, that in concluding that inspection of the Source B audio recordings was not in the interests of justice, the only factor considered by the judge was that disclosure of the identity of Source B was not required.[33] Mr Poland submitted that the judge erred because his Honour did not address:
1.the affidavit evidence in support of Mr Poland's application to the effect that the identity of Source B could only be Mr Grainger;
2.the media parties' pleas of facts and beliefs concerning their enquiries and the quality of their information and sources; nor
3.the prejudice to Mr Poland in not having the recordings to use as evidence at trial.
[33] Primary decision [72].
Mr Poland submitted that as a result, the judge did not consider whether it was in the interests of justice for Mr Poland to have inspection of the content of the recordings despite the identity of Source B being known. Mr Poland submitted that the following matters were material considerations that weighed against the policy underpinning the newspaper rule (1) as the identity of Source B was known, there was no confidential source to protect, (2) without the recordings, Mr Poland would be limited in his ability to respond to the media parties' posited case against him, and (3) given that Source B's identity was known, the content of the audio recordings is of much greater importance to Mr Poland's case than the identity of the source.
In relation to ground 5, Mr Poland submitted that the judge erred in finding that Source B was a confidential source. He submitted that (1) the evidence was incapable of establishing the finding that Source B was a confidential source, and (2) the evidence in fact established that Source B's identity was no longer confidential.
Grounds 6 and 7 - Source A
In relation to ground 6, Mr Poland submitted that the judge's finding that Source A was a confidential source was an error in three respects:
1.Mr Hondros deposed that 'a recording of a meeting' would be sent to him. This was 'completely divorced from any information that might have been provided to Mr Hondros for publication or investigation'.
2.The 'standing arrangement' deposed to by Mr Hondros was vague and there was nothing to indicate that Source A ever sought or was given an assurance of confidentiality.
3.Insofar as Mr Hondros deposed, in effect, that the recording was received shortly after the communication with Source A on 25 January 2019, this is to be contrasted with the media parties' pleading that they received the recording on 25 February 2019. This indicates that Source A could not have been a confidential source.
Mr Poland submitted, in effect, that the interrogatories application should be granted because the interrogatories sought would serve case management purposes. He submitted that the information sought by the interrogatories (1) is peculiarly within the knowledge of Fairfax and Mr Hondros, (2) is relevant to the media parties' qualified privilege defence (contrary to the judge's finding, see ground 7), and (3) is relevant to Mr Poland's unlawful means conspiracy claim.
In relation to ground 7, Mr Poland contended that the judge erred in finding that no reliance was placed by the media parties on the communication with Source A. He referred to the plea referred to in [9] ‑ [11] above.
The media parties' submissions
Grounds 1, 2 and 3 - legal professional privilege
The media parties contended that the judge did not err in principle. They contended that Mr Poland failed to draw a distinction between 'issue waiver', which was the basis for waiver relied on by Mr Poland in this matter, and 'disclosure waiver'. That distinction, dealt with in the cases, is not inconsistent with the principles of implied waiver in Mann. They referred to Commissioner of Taxation v Rio Tinto Ltd;[34] Thomason v Campbelltown Municipal Council;[35] Torcasio Developments Pty Ltd v County Park Developments Pty Ltd;[36] Hongkong Bank v Murphy; Pickering v Edmunds and Woodside Petroleum Development Pty Ltd v H & RE & W Pty Ltd.[37]
[34] Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 [54].
[35] Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347.
[36] Torcasio Developments Pty Ltd v County Park Developments Pty Ltd (Unreported, VSC, 9 September 1991) (Byrnes J).
[37] Woodside Petroleum Development Pty Ltd v H & RE & W Pty Ltd (Unreported, WASC, 3 October 1997) (Anderson J).
In relation to ground 2, the media parties submitted that what the judge found, in effect, was that if the media parties had not amended their defence to remove reference to the pre‑publication legal advice, they would have continued to conduct their defence in a manner that directly put the legal advice in issue. By amending their defence they had ceased to rely on the advice and had removed the unfairness that would otherwise have arisen if such reliance had been maintained through to, and at, trial. They submitted that there was no error in that reasoning and it was consistent with the principles in Mann. They submitted that the reference to irrevocability by the judge was in the context of the length of time that the relevant allegation had stood, prior to its deletion, and whether this was a sufficient basis for the court to find that there had been waiver, despite the amendment.
In relation to ground 3, the media parties contended that the judge had already found that he was not prepared to order inspection of the pre‑publication legal advice. They submitted that, in any event, once the amendment had been made, Mr Poland did not advance any other basis on which the legal advice might be relevant to an issue. Mr Poland himself recognised that this ground is redundant, because he recognised that he could only obtain inspection of the legal advice if grounds 1 and 2 were to succeed.
Grounds 4 and 5 - Source B audio recordings
The media parties contended that Mr Poland had not established any necessity for overriding the newspaper rule at this interlocutory stage, or established any appellate error in not being satisfied that there was any such necessity. The court exercises a judicial discretion in deciding at an interlocutory stage in defamation and related actions whether to make or refuse an order which will, directly or indirectly, disclose the identity of a confidential source.[38] No discretionary error in accordance with House v The King[39] has been established. This case is materially different from John Fairfax & Sons Ltd v Cojuangco.[40] In that case, the interests of justice were served by the disclosure of confidential sources since, without the information, the person might be left without an effective remedy in respect of the defamatory imputations published in the media. No consideration of that kind is present here.
[38] West Australian Newspapers Ltd v Bond [64] - [67], [85].
[39] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[40] John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; (1988) 165 CLR 346, 357.
The media parties submitted that Mr Poland has a copy of the recording of the meeting made by Source B. At this interlocutory stage, he can determine for himself, having attended the meeting and having a recording of it, whether it is an accurate recording of what was said and whether the matters complained of were written in terms which were fair, accurate and balanced, or otherwise.
There are no requirements under the newspaper rule that there be any anterior request by, or promise or assurance to, the confidential source before the relevant information is provided. In any event, the evidence was that 'before anything of substance was discussed', Mr Hondros told Source B that their identity would be kept confidential. The evidence was sufficient to find that Source B was a confidential source.
As to Mr Poland's contention that the identity of Source B was no longer confidential, the media parties submitted that Mr Poland failed to distinguish between a plaintiff undertaking detailed investigations from which it infers that it has identified the confidential source, and a plaintiff seeking the assistance of the court to order the media party disclose information which would reveal the identity of the confidential source. There is no evidence that the media parties broke their promise to Source B to maintain confidentiality. The fact that Mr Poland, through his own devices, has found out the telephone numbers of Mr Hondros and an attendee at the relevant meeting and subpoenaed their telephone records, does not displace the public interest rationale for justifying the application of the newspaper rule.
Grounds 6 and 7 - Source A
The media parties contended that Mr Poland has overlooked Mr Hondros' affidavit sworn 25 January 2022, and that the evidence as a whole supported the finding that Source A was a confidential source.
In relation to ground 7, the media parties submitted that the relevant finding by the judge was that no reliance was placed by the media parties on the communication with Source A for the purpose of the qualified privilege plea. The pleading referred to by Mr Poland was only pleaded in answer to the claim for aggravated damages, and it merely set the background to the principal plea that the media parties confirmed the accuracy and reliability of the recording with Source B on 27 February 2019.
Leave to appeal
Submissions on leave to appeal
Mr Poland submitted, in effect, that the information sought in the application before the judge was of material forensic significance, and leave to appeal should be granted on the basis that the judge's decision was correct and substantial injustice would be caused if the decision were left unreversed.
The media parties resisted the grant of leave. In relation to the pre‑publication legal advice, they submitted that no substantial injustice would be done if the decision were left unreversed because they no longer pleaded the advice as part of their qualified privilege defence, and Mr Poland, who attended the meeting, has now been provided with a copy of the recording, and may assess for himself the accuracy of the publication.[41]
[41] Respondents' submissions, par 3.
In relation to the audio recordings with Source B, the media parties submitted that the only relevance of the conversations between the media parties and Source B on 27 February 2019 concerns the issue of reasonableness in relation to the qualified privilege plea that the recording at the meeting was confirmed to be authentic and accurate. Again, the media parties said that as Mr Poland attended the meeting and now has a copy of the recording of the meeting, he is able to assess for himself the reliability and accuracy of the recording and the fairness and accuracy of the publications.[42]
[42] Respondents' submissions, par 4.
In relation to the identity of Source A, the media parties submitted that the communication by Source A that a recording of the meeting would be sent to Mr Hondros is only pleaded in the context of a response to the plea to the claim for aggravated damages, and it is not pleaded with respect to qualified privilege. Insofar as Mr Poland seeks to attribute some significance to the plea that the call from Source A was made on 25 January 2019 (and not 25 February 2019), that plea was in error and has been corrected. In any event, the identity of the confidential source is not relevant to the media parties' publication of what occurred at the meeting on 15 January 2019. Mr Poland attended the meeting and has been provided with a copy of the recording.[43]
[43] Respondents' submissions, par 5.
The media parties also contended that it would be a matter for the trial judge to determine whether the making of the recording was in contravention of s 5(1) of the Surveillance Devices Act, and that even if it was illegally made, the recording would not be inadmissible at the trial[44] and the court could determine the fairness, accuracy and balance of the media parties' report of the meeting.[45] The media parties further submitted that the application before the judge in this appeal is 'simply another example of the appellant sniping around the penumbra of the issues, while acting in a manner inimical to the attainment of the goal prescribed by O 1 rule 4A' of the Rules.[46]
[44] Reference was made to Poland v Hedley [2019] WASC 403 [48].
[45] Respondents' submissions, pars 7 - 11.
[46] Respondents' submissions, par 12.
The media parties also submitted in oral submissions that insofar as Mr Poland relied on the pleaded causes of action with respect to conspiracy to justify access to the material he sought in the application, the court should take into account, on the question of substantial injustice, the fact that on 4 April 2023 (just before the hearing of this appeal), the primary judge heard an application by the media parties to strike out those pleaded causes of action.[47]
[47] Appeal ts 21, 24.
It is convenient to begin by considering the merits of grounds 1 ‑ 5 before dealing with the question of leave, because in this case the merits of the grounds bear strongly on whether leave to appeal should be granted.
The merits of grounds 1 - 3 (waiver of privilege)
The principles
Legal professional privilege exists to protect the confidentiality of communications between the lawyer and client.[48] It is inconsistency between the conduct of the client and the maintenance of the confidentiality which effects a waiver of the privilege.[49] The assessment of whether a party has waived privilege is determined by considering whether, viewed objectively, the conduct of the privilege‑holder is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Where the privilege‑holder's conduct objectively evinces the requisite inconsistency, the law will recognise the inconsistency and its consequences, even though such consequences may not reflect the subjective intention of the privilege‑holder.[50] The assessment is to be made in the context and circumstances of the case, and in light of any considerations of fairness arising from that context or those circumstances.[51] Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether, objectively, there is inconsistency. There is not, however, some overriding principle of fairness operating at large.[52] All the circumstances must be looked at, including whether any disclosure to a third party was on terms and in circumstances consistent with the preservation of confidentiality.[53]
[48] Mann [28]; Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49 [35].
[49] Mann [28].
[50] Mann [29] - [30].
[51] Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 [45].
[52] Mann [29], [34]; Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 [31] ‑ [32].
[53] Mann [32] - [34]; Osland [45], [49].
In Mann, a member of the public brought a claim against the ACT government. The ACT government settled the claim without admitting liability. The litigant complained to a member of the Legislative Assembly of the ACT (MLA) about the conduct of the government in the litigation. The Chief Minister provided to the MLA, in express confidence, the legal advice which the government had received to enable him to consider the reasons for the conduct. The MLA returned the copies to the Chief Minister, but retained the covering letter, a copy of which he sent to the litigant. The litigant then sought production of copies of the documents in the Supreme Court of the ACT by way of preliminary discovery to ascertain whether they were defamatory. He contended that the privilege had been lost by their having been shown to the MLA. In finding that privilege had not been waived in these circumstances, Gleeson CJ, Gaudron, Gummow and Callinan JJ said:[54]
The purpose of the privilege was to enable the Australian Capital Territory to seek and obtain legal advice, in relation to the litigation which [the litigant] had instituted, without the apprehension of being prejudiced by subsequent disclosure of that advice. That included, and perhaps included above all, subsequent disclosure to [the litigant]. If [the MLA] had been given copies of the legal report and advice given to the Territory in relation to the proceedings brought by [the litigant] upon the basis that he was at liberty to show them to [the litigant], (even if to nobody else), that would have waived the privilege, because it would have been inconsistent with the confidentiality protected by the privilege. It is not difficult to imagine other circumstances in which the basis on which the communications were made available to [the MLA], even though limited, would have been inconsistent with the purpose of the privilege and thus would have resulted in waiver. Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency. The reasoning of the majority in [Goldberg v Ng] illustrates this.
The purpose of the privilege being to protect the Territory from subsequent disclosure of the legal advice it received concerning the litigation instituted by [the litigant], there was nothing inconsistent with that purpose in the Chief Minister conveying the terms of that advice, on a confidential basis, to [the MLA] who wished to consider the reasonableness of the conduct of the Territory in relation to the litigation. (footnote omitted)
[54] Mann [34] - [35].
In Expense Reduction, the plaintiffs sued the defendants in connection with the entry into, performance and termination of certain agreements. Pursuant to orders made for discovery, the defendants' lawyers, contrary to the defendants' instructions, disclosed in the non‑privileged section of the list of documents a number of legally‑privileged documents. The whole discovery involved some 60,000 documents, and the erroneous disclosure involved 13 documents. Disks containing the privileged documents were provided to the plaintiffs' lawyers by the defendants' lawyers on 19 October 2011. On 25 November 2011, the plaintiffs' solicitors wrote to the defendants' solicitors pointing out an apparent inconsistency in the discovery, insofar as some documents within a certain class had been the subject of a claim for legal professional privilege and others had not. On 6 December 2011, the defendants' lawyers wrote to the plaintiffs' lawyers thanking them for their communication and advising that the relevant documents had, erroneously, not been marked as privileged. The letter was sent promptly once the defendants' lawyers became aware that mistakes had been made and before the plaintiffs' solicitors had fully inspected the documents.[55] The High Court said:[56]
[35]These circumstances are not indicative of an inconsistent position being taken by the [defendants'] lawyers such that waiver should be imputed to those parties. The issue of waiver should never have been raised.
…
[43]It is important to bear in mind that the disks containing the privileged documents only came into the possession of the [plaintiffs] as a result of the process of court-ordered discovery. They would not have known, and had no entitlement to know, of the [defendants'] documents but for the provisions of the [Uniform Civil Procedure Rules 2005 (NSW)] and the order for discovery made pursuant to them. When an order for discovery is made under the [Uniform Civil Procedure Rules], the party ordered to make discovery is obliged to comply with the order by serving a list of documents.
[44]As Lord Diplock observed in Harman v Secretary of State for Home Department, discovery is a practice peculiar to common law systems, whereby parties to litigation can be compelled to produce to one another, for inspection and copying, all the documents in their possession or control which contain information that may assist another party to advance its own case or to damage the case of the disclosing party. As his Lordship also observed, '[t]he use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself'.
[45]Although discovery is an inherently intrusive process, it is not intended that it be allowed to affect a person's entitlement to maintain the confidentiality of documents where the law allows. It follows that where a privileged document is inadvertently disclosed, the court should ordinarily permit the correction of that mistake and order the return of the document, if the party receiving the documents refuses to do so. (footnotes omitted)
[55] Expense Reduction [34].
[56] Expense Reduction [35], [43] - [45].
The mere reference to a privileged document in a pleading will not constitute a waiver.[57] Indeed, the Rules contemplate that an application to inspect a document referred to in a pleading may be met with a claim for privilege.[58] Where, however, a party to proceedings makes an assertion as part of its case that, directly or indirectly, puts the contents of privileged documents in issue, or necessarily opens them to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege, privilege will be impliedly waived. It does not matter that the privilege‑holder did not subjectively intend to lose the benefit of the privilege.[59] This may occur where the privilege‑holder puts the contents of the legal advice in issue by specifically relying on the contents of the advice (and not merely the fact of the advice) to vindicate its claimed state of satisfaction.[60] Thus, if a party in a pleading asserts the effect of, or its reliance upon, a particular communication, the party's conduct, informed by considerations of fairness, may be treated as having waived any legal professional privilege in the communication.[61]
Analysis
[57] Attorney‑General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, 481, 489, 497.
[58] Order 26 r 8, O 26 r 12 of the Rules.
[59] Commissioner of Taxation v Rio Tinto [52], [54], [65], [68].
[60] Commissioner of Taxation v Rio Tinto [67].
[61] Maurice (493).
In our view, the learned primary judge, with respect, added a gloss to, and thereby misstated, the relevant test for waiver by finding that the 'guiding principle is focused primarily on avoiding unfairness in the trial process'.[62] The test for waiver has as its focus whether there is inconsistency between the conduct of the client and the maintenance of confidentiality in the communication which is the subject of the claim for privilege (see [72] ‑ [75] above). While any unfairness arising from the context and circumstances of the case may be relevant in the evaluation of the question of inconsistency, as already observed the test is one of inconsistency and is not a broader enquiry as to 'fairness'.
[62] Primary decision [45].
Further, and consequently, for the reasons below, the judge, with respect, erred in concluding that the media parties had not waived the confidentiality in the pre‑publication legal advice.[63]
[63] Primary decision [45].
In this case, the media parties deliberately pleaded, by way of a defence of qualified privilege, that (1) they had sought and obtained legal advice in advance of publishing the articles, and (2) they had acted in accordance with that advice. It was no mere plea as to the fact of having obtained advice. The formal plea disclosing their conduct in acting in accordance with the advice necessarily put the contents of the legal advice in issue, or necessarily opened it to scrutiny. Their conduct in pleading these matters in their defence was inconsistent with the maintenance of the confidentiality which the privilege was designed to protect. The disclosure could not be undone merely by deleting the plea. The effect of deletion was that the media parties could not lead evidence of the legal advice in accordance with which they allegedly acted in order to establish the pleaded defence of qualified privilege. It does not, however, preclude Mr Poland exploring at trial the issue of the reasonableness of the conduct of the media parties by reference to the legal advice the subject of the disclosure.
The additional statement in the plea, that they 'claim[ed] legal professional privilege in respect of the substance of the advice' does not alter the essential character, scope and effect of the plea. An express disclaimer of an intention not to waive privilege will be of no avail if the privilege‑holder has, by its conduct, objectively acted in a manner inconsistent with the maintenance of the confidentiality which the privilege is designed to protect. As Isaacs J said in a somewhat analogous context, '[a] man is bound by what he does, and he cannot alter what he does by saying he is doing it "without prejudice"'.[64]
[64] Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64; (1920) 28 CLR 305, 324 - 325.
This is not a case where a document has been disclosed to a third party in circumstances and on terms that were consistent with the retention of confidentiality. In this case, the plea concerning obtaining and acting in accordance with legal advice was voluntary, deliberate and directed, in the context of adversarial litigation, at Mr Poland 'perhaps [the person] above all'[65] against disclosure to whom the privilege was designed to protect. The plea was, objectively, intended to be relied on as a material part of the media parties' answer to Mr Poland's action. The deliberateness of the conduct in raising the plea is confirmed by, but not dependent upon, the further consideration that the plea remained as part of the defence for over two years, including at a time when the parties went to mediation with a view to attempting a settlement of the proceedings.
[65] Mann [34].
Given the nature of the pleading in the present case (as discussed at [78] above), the relevant inconsistency, and thereby waiver, occurred at the time that the media parties filed and served the pleading referred to in [11] ‑ [12] above.
In these circumstances, waiver occurred by the media parties filing and serving the pleading, and the confidentiality in the communication cannot be resuscitated by the media parties merely deleting the plea. It is unnecessary, for the purposes of this appeal, to consider a further point the subject of exchange in oral submissions[66] as to whether, alternatively, waiver occurred at some point in time subsequent to the filing and serving of the pleading, by the media parties' continued maintenance of the pleading, including for the purposes of mediation, for over two years. Likewise, it is not necessary to consider whether a pleading which referred to legal advice but did not have the immediate effect of waiving privilege might, by the subsequent conduct of the litigation, be found to have waived privilege. Nevertheless, the subsequent conduct of the litigation in this case, including the continued maintenance of the plea, demonstrates why, as a matter of principle, a deliberate plea which puts in issue the subject of legal advice, is inconsistent with the maintenance of privilege. A pleading to that effect is a formal statement of the party's case and which affects the conduct of the litigation, not a strategic position from which the party may retreat without consequence at the point at which it is subject to compulsory processes such as discovery.
[66] Appeal ts 4 - 6.
Despite the deletion, the legal advice remains listed as a discovered document and its (continued) relevance in that regard was deposed to by Mr Hondros in his affidavit in relation to discovery sworn 9 November 2021.[67] The legal advice continues to be relevant to (at least) (1) Mr Poland's plea that the conduct of the media parties in publishing the defamation was improper, unjustifiable and lacking in bona fides,[68] (2) Mr Poland's plea of a conspiracy to injure him,[69] and (3) the media parties' plea that their conduct was reasonable in the circumstances,[70] including pleas as to the reasonableness of their belief and the fact of reasonableness in relation to the nature and scope of their inquiries and the responses obtained from those inquiries.[71]
[67] Mr Hondros' affidavit sworn 9 November 2021, par 3 items 21, 42 - 44.
[68] Substituted statement of claim, 12 October 2021 (statement of claim), par 17.
[69] Statement of claim, pars 19 - 20.
[70] Second further re‑amended defence, 31 May 2022, par 21(c).
[71] Second further re‑amended defence, 31 May 2022, par 21(c), particular 5(m).
A party has prima facie an entitlement to inspect discovered documents relevant to the issues in the proceedings, save where the party against whom inspection is sought has a positive substantive right to withhold the document from production.[72] The prima facie right in a party to inspect relevant documents is important both to the proper conduct of the trial, as well as well as for the purposes of informed prospective settlement negotiations.[73] Case flow management considerations do not, in our view, intrude upon a party's prima facie entitlement to inspect discovered documents. Thus in the present case, once waiver of privilege was established, an order for inspection should have followed, in effect as a matter of course.
[72] Alcoa of Australia Ltd v Apache Energy Ltd [2014] WASCA 148 [57.1].
[73] Hadid v Lenfest Communications Inc (1996) 70 FCR 403, 410; Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [2019] WASC 154 [44].
In light of the foregoing, in our view, the judge, with respect, erred essentially as alleged in grounds 1 ‑ 3 of the appeal.
The merits of grounds 4 - 5 (Source B audio recordings)
The newspaper rule
The newspaper rule is neither a rule of evidence nor a rule of law. Rather, it is a rule of practice in defamation actions that the court, in the exercise of its discretion on an interlocutory application, will generally not compel the media defendant to disclose its confidential sources of information for the publication.[74] It is a special exception, made in favour of publishers, proprietors and editors of newspapers as defendants in actions of libel, from the general rule that discovery by affidavit of documents and answers to interrogatories must be made of all relevant matters.[75]
[74] Cojuangco (354 - 355), (356); Liu v The Age Company Ltd [2016] NSWCA 115; (2016) 92 NSWLR 679 [121].
[75] McGuinness v Attorney‑General (Vic) [1940] HCA 6; (1940) 63 CLR 73, 104.
The protection against disclosure exists only prior to the hearing of the action. It does not exist at the trial.[76]
[76] Wran (253); Liu [122].
The rule of practice rests on the recognition of public interest in the free flow of information.[77] The free flow of information is a vital ingredient in investigative journalism which itself is an important feature of society. The court recognises that information is more readily supplied to journalists where they undertake to preserve confidentiality in relation to their sources of information.[78] Another reason advanced for the rule was the assumption that the responsibility of the newspaper for the republication of what was said to it by an informant was necessarily co‑extensive with the responsibility of the informant for what had been published in the newspaper, making it undesirable for plaintiffs at an interlocutory stage of proceedings to 'delve around for other targets'.[79]
[77] Cojuangco (356).
[78] Cojuangco (354).
[79] Liu [121]; Cojuangco (353).
In Cojuangco, the High Court observed that in McGuinness, Starke J thought that the rule was not confined to newspapers in defamation actions, and that it was of general application. The court observed that the rule had been applied in an action of slander of title in New Zealand,[80] but that, subject only to this exception, Starke J's view had not been accepted.[81] The rule applies in analogous interlocutory applications such as an application for preliminary discovery against a media defendant.[82]
[80] Broadcasting Corporation of New Zealand v Alex Harvey Industries Ltd [1980] 1 NZLR 163.
[81] Cojuangco (353).
[82] Cojuangco (356 - 357).
It is the identity of the informant, and not the information obtained by the media publisher from the informant, which the rule is designed to protect. The information itself which is obtained from the informant must be disclosed where a defence of qualified privilege is pleaded. The information obtained from the informant will only be protected by the rule from disclosure where the information, if obtained, would also involve disclosing the identity of the informant.[83]
[83] Wran (252 - 253).
In the exercise of the court's discretion in this context, disclosure of the confidential source will not be ordered at an interlocutory stage unless it is necessary in the interests of justice or other special circumstances exist.[84]
[84] West Australian Newspapers v Bond [67]; Herald & Weekly Times Ltd v Guide Dog Owners' & Friends' Association [1990] VR 451, 463; Liu [125].
It may be necessary in the interests of justice to compel disclosure, on an interlocutory application, to enable the informant to be sued or joined as a defendant where their identity is not otherwise known and where, if an order were not made, the plaintiff may be left without an effective remedy. The court, in dealing with such an application, may conclude that, on the material before it, the plaintiff may be left without an effective remedy if the newspaper defendant maintains, for example, a statutory defence of qualified privilege which might well succeed.[85]
[85] Cojuangco (357 - 358); Herald and Weekly Times; Liu [136] - [137].
The factors to be taken into account in deciding whether, in the exercise of the court's discretion at the interlocutory stage, it is necessary in the interests of justice to require disclosure of a confidential source, will depend upon the facts and circumstances of the particular case. However, they would ordinarily include a consideration of the manner in which the information was obtained, including whether it was obtained by lawful means.[86]
[86] West Australian Newspapers v Bond [89].
In Cojuangco, the court, in ordering disclosure, identified special circumstances, including that (1) the media defendant had in general terms (by referring inter alia to a 'senior American bank official' and 'one of the leading local US banks') identified its source, (2) the identification of the source in general terms advantaged the media defendant by giving the defamatory imputations 'an aura of authority and authenticity' which they otherwise would not have had, and (3) the gravity of the defamation was 'of a very serious kind'.[87] If the defendants positively raise the identity and integrity of their confidential sources to assert, as part of a qualified privilege defence, that they have acted reasonably in the publication, the weight to be attributable to the public interest in disclosure may be correspondingly increased.[88]
[87] Cojuangco (258).
[88] Madafferi v The Age [2015] VSC 687 [67].
One of the consequences of the rule may be to give media publishers tactical advantages over those defamed. Another might be to make defamation litigation more risky, expensive and difficult to settle, but those disadvantages have been accepted as the price of the freer flow of information to the public.[89]
Analysis
[89] Hodder v Queensland Newspapers Pty Ltd [1994] 1 Qd R 49 (54).
The media parties contended, without dispute by Mr Poland, that appellate intervention in this context was governed by the principles in House, rather than by the application of the correctness standard.[90] It is unnecessary for present purposes to decide that point. For the reasons which follow, on either standard, grounds 4 and 5 should be upheld.
[90] As to the distinction between the two, see, for example, Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; (2019) 55 WAR 366 [124] ‑ [129].
The media parties conducted their case in a way which has materially and substantially impinged upon the confidentiality of Source B. The media parties, no doubt to underscore the authenticity of the source and its reliability for the purposes of the plea of qualified privilege,[91] pleaded in a general way the identity of Source B by pleading that he or she was a participant at the meeting. This was in circumstances where it was common ground that only three people (apart from Mr Poland) attended the meeting. As the primary judge observed, the 'universe of participants in the meeting [was] very small: Mr Grainger, his wife and the PDC representative'.[92] The media parties also by their evidence disclosed that Source B not only participated at the meeting, but recorded the conversation at the meeting. They also by their evidence provided information as to the date of the telephone communications with Source B and information as to their timing, as well as the identity of the media party (Mr Hondros) who made and received the relevant telephone calls with Source B.
[91] cf Cojuangco (358).
[92] Primary decision [72].
On the materials adduced by the media parties, together with the subpoenaed telephone records of Mr Hondros referred to in Mr Tharby's affidavit, it was open to infer that Source B was Mr Grainger. Indeed, no other inference was reasonably open on the materials before the learned primary judge. Given the object of the newspaper rule - to protect the confidentiality of confidential sources of the media - the circumstance that the identity of Source B was known to the appellant and so no longer confidential counted strongly against application of the newspaper rule to refuse protection. The judge erred, with respect, in not taking this into account.
In our respectful view, the judge mischaracterised the issue for determination by in effect addressing whether it was necessary in the interests of justice for Mr Poland to know, in advance of trial, which of the three people who attended the meeting was Source B.[93] In the circumstances before his Honour, the issue for determination was not whether it was necessary in the interests of justice for Mr Poland to know whether Mr Grainger (as opposed to his wife or the PDC representative) was Source B. As already explained, that was evident on the materials.
[93] Primary decision [72] - [73].
Rather, the issue was whether it was necessary in the interests of justice to preclude Mr Poland from having access to the record discovered by the media parties of their communications with Source B, on the basis of a rule of practice designed to protect the confidentiality of the informant until trial, in circumstances where (1) the communications were pleaded by the media parties and Source B was identified in a general way, (2) the pleading was a material aspect of their defence of qualified privilege, and (3) the identity of Source B was apparent.
Accordingly, his Honour, with respect, erred in principle by not addressing the relevant issue in the circumstances of this particular case, which concerned not the identity of Source B but the content of the communications with Source B.
As the judge noted, the media defendants rely on their communications with Source B in support of some of their defences, as set out in [9] ‑ [11] above.
However, his Honour, with respect, failed, as alleged by Mr Poland, to take into account the relevance of the contents of the audio recordings with Source B in relation to the causes of action against the media parties and the fourth ‑ sixth respondents independent of Mr Poland's causes of action in defamation. The evidence of the media parties was to the effect that in Mr Hondros' communications with Source B on 27 February 2019, Source B (1) said that Source B attended the meeting and made the recording of it, and (2) disclosed to Mr Hondros the purpose for which he made the recording.[94] Accordingly, the audio recording of that communication is likely to shed light on the circumstances in which the recording was made and the media parties' understanding of the circumstances in which the recording was made, including in the context of the warnings, allegedly made to the media parties prior to the publication of articles, that the recording had been obtained in circumstances in breach of the Surveillance Devices Act.[95] It is prima facie relevant to the issue of whether the media parties and the other respondents knowingly communicated a private conversation (as defined) and thereby to Mr Poland's separate causes of action in conspiracy.
[94] Mr Hondros' affidavit dated 27 September 2019, par 13.
[95] Substituted statement of claim, 12 October 2021, pars 17.11, 19, 20, 22.
Assuming, without deciding, that the newspaper rule had any application to the independent causes of action in conspiracy against the media parties and the fourth ‑ sixth respondents, it was nevertheless a special circumstance pointing against the application of the rule in this case to which the judge ought, but failed, to have had regard.
The matters referred to in [97] ‑ [104] above also indicate that his Honour's decision was unreasonable or plainly unjust,[96] alternatively erroneous if the correctness standard were applicable.
[96] House (505).
Error has been established and it is necessary for this court to re‑exercise the relevant discretion. We would order production of the audio recordings of the communications with Source B. In our opinion, the matters referred to in [98], [100] and [103] above were special circumstances and/or matters which made it necessary in the interests of justice for disclosure to be made, despite disclosure entailing collateral confirmation that Source B was Mr Grainger.
Grounds 6 and 7 (identity of Source A)
In our opinion, even if there were merit in the specific complaints made by grounds 6 and 7, the peripheral relevance of Source A means that case management considerations would sustain and require the refusal of the application. Moreover, for the same reasons, no substantial injustice would be done if the judge's decision were left undisturbed in this respect. The pleading of Source A does not relate to the defence of qualified privilege. It is in response to a specific plea in par 17.6A of the substituted statement of claim and is no more than, in effect, a contextual plea relevant to the pleaded fact that the media parties obtained a copy of the recording on or about 25 February 2019. Moreover, Mr Poland has pleaded elsewhere that the fourth respondent, alternatively the fifth respondent, alternatively the sixth respondent, had provided Mr Hondros with a copy of the recording. Those parties have not pleaded their defences or provided discovery. The identity of the supplier of the recording is likely to emerge in due course, and it is not necessary in the interests of justice to disclose at this procedural point the identity of Source A who, on the pleadings, merely foreshadowed that a copy of the recording would be provided.
Leave to appeal
The principles governing this court's power to grant leave to appeal are well established. They were summarised in NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd.[97] In the end, the ultimate question is always whether the interests of justice require the grant of leave. As explained in NRW Contracting, generally the requirement of substantial injustice is not satisfied by interference with procedural rights or the creation of a procedural disadvantage but, rather, looks to whether substantive rights are adversely affected. Leave will be granted more readily when an interlocutory decision determines a substantive right. Consequently, where substantive rights are not effectively determined by the decision sought to be challenged, an appellate court should be reluctant to interfere. But the touchstone always remains the interests of justice.[98]
[97] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [117] ‑ [120]. See also Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2023] WASCA 45 [45] ‑ [46].
[98] NRW Contracting [117] - [118].
In the present case, having regard to the merits of grounds 1 ‑ 5, notwithstanding that the primary judge's decision was procedural in character and did not determine substantive rights, in our view it is in the interests of justice to grant leave to appeal. As explained above, in our respectful view, the primary judge erred in refusing to order production of both the legal advice said by the media defendants in its now withdrawn plea to have been relied on, and the audio recordings of the communications with Source B. On our assessment, production to Mr Poland of this material is likely to bear, materially and not insubstantially, upon the course and conduct of the proceedings, including at trial. That is particularly so in relation to production of the audio recording of communications with Source B. As explained above, the media defendants rely heavily upon having communicated with Source B as to the authenticity of the recording of the meeting in support of the reasonableness of their conduct and other aspects of their defence. The audio recording is also relevant in the respects explained at [103] above. In those circumstances, we consider the audio recording of the communications with Source B is likely to have a high degree of forensic significance in enabling Mr Poland to test, and potentially undermine, the media defendants' pleas. In that manner, whether the recording of Source B is produced is likely to materially affect the fairness of the trial. In addition, we have reached a firm and clear view that, with respect, the refusal to order production and inspection of the advice and the Source B audio recordings was erroneous. In all the circumstances, we are satisfied that leave to appeal should be granted.
We would add that the undetermined strike‑out application in respect of the conspiracy pleas has, in our view, no bearing on the question of leave, but even if it did, leave ought to be granted given the relevance of the material to the defamation causes of action.
Conclusion
For these reasons, we would grant leave to appeal and allow the appeal in respect of grounds 1 ‑ 5 inclusive. The parties should be heard on the precise form of the orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IB
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
2 MAY 2023
Subject to subsection (2), a person shall not knowingly publish or communicate a private conversation, or a report or record of a private conversation, or a record of a private activity that has come to the person's knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device.
Penalty:
(a) for an individual: $5 000 or imprisonment for 12 months, or both;
(b) for a body corporate: $50 000.
Section 3 defines 'private conversation' as:
any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard[.]
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