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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Poland v Hedley [2023] WASCA 69
Case
[2023] WASCA 69
Decision Date
CaseChat Overview and Summary
In Poland v Hedley [2023] WASCA 69, the Supreme Court of Western Australia, on appeal from the Supreme Court of Western Australia, allowed an appeal against the refusal of leave to inspect certain documents and for leave to administer interrogatories in the primary defamation proceedings brought by Mr Poland against various respondents, including media parties. The appeal related to an interlocutory application in the primary defamation proceedings. Mr Poland sought inspection of certain documents and leave to administer interrogatories. The documents sought for inspection were (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). The media parties contended that the documents were privileged and that disclosure was not in the interests of justice. The primary judge dismissed the applications. The primary judge held that the media parties had not waived the privilege in the pre-publication legal advice because the parties had removed the plea to the advice from their defence. The primary judge also held that it was not necessary in the interests of justice to compel disclosure of the identity of Source B. The media parties contended that the appeal should be dismissed because there was no substantial injustice if the primary decision were left undisturbed. The appeal court allowed the appeal. The appeal court held that the primary judge erred in principle in concluding that the media parties had not waived privilege in the pre-publication legal advice. The plea concerning obtaining and acting in accordance with legal advice was deliberate and inconsistent with the maintenance of confidentiality which the privilege was designed to protect. The appeal court held that the primary judge also erred in principle in concluding that it was not necessary in the interests of justice to compel disclosure of the identity of Source B. The identity of Source B was known and so no longer confidential. The appeal court also held that the audio recording of the communications with Source B was 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. In those circumstances, the appeal court held that it was necessary in the interests of justice to compel disclosure. The appeal court held that leave to appeal should be granted because it was in the interests of justice to do so. The appeal court ordered that leave to appeal be granted and the appeal be allowed in respect of grounds 1 to 5.