Poland v Hedley [No 4]

Case [2022] WASC 144

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   POLAND -v- HEDLEY [No 4] [2022] WASC 144

CORAM:   TOTTLE J

HEARD:   27 JANUARY 2022

DELIVERED          :   29 APRIL 2022

FILE NO/S:   CIV 1370 of 2019

BETWEEN:   GREGORY DAVID POLAND

Plaintiff

AND

KATE HEDLEY

First Defendant

FAIRFAX DIGITAL AUSTRALIA & NEW ZEALAND PTY LTD

Second Defendant

NATHAN JOHN HONDROS

Third Defendant

CLAIRE BRADLEY

Fourth Defendant

DAVID BIRCH

Fifth Defendant

ANDREW WILLIAM HASTIE

Sixth Defendant

ZAK RICHARD FRANCIS KIRKUP

Seventh Defendant


Catchwords:

Practice and procedure - Discovery - Defamation - Application for the inspection of communications containing pre-publication legal advice - Whether legal professional privilege waived by referring to privileged communications in defence - Where defence amended to remove reference to privileged communications - Whether waiver of legal professional privilege irrevocable - Where relevant potential unfairness removed by amendment - Turns on own facts

Practice and procedure - Discovery - Defamation - Application to inspect audio recordings of journalists' conversations with confidential source - Journalist protection provisions - Nature, scope and application of the newspaper rule - Whether in the interests of justice to disclose the identity of the confidential source - Turns on own facts

Practice and procedure - Discovery - Defamation - Application for leave to administer interrogatories - Interrogatories would compel defendants to reveal the identity of journalists' confidential source - Whether it was in the interests of justice to disclose the identity of the confidential source - Turns on own facts

Legislation:

Evidence Act 1906 (WA), s 20G, s 20I, s 20J, s 20K
Rules of the Supreme Court 1971 (WA), O 26 r 4, O 26 r 12
Surveillance Devices Act 1998 (WA), s 5(1), s 9(1)

Result:

Applications dismissed

Category:    B

Representation:

Counsel:

Plaintiff : Mr M L Bennett & Mr A Tharby
First Defendant : Mr M C Goldblatt
Second Defendant : Mr M C Goldblatt
Third Defendant : Mr M C Goldblatt
Fourth Defendant : Mr M C Goldblatt
Fifth Defendant : Mr M C Goldblatt
Sixth Defendant : Mr M C Goldblatt
Seventh Defendant : Mr M C Goldblatt

Solicitors:

Plaintiff : Bennett + Co
First Defendant : Banki Haddock Fiora
Second Defendant : Banki Haddock Fiora
Third Defendant : Banki Haddock Fiora
Fourth Defendant : Banki Haddock Fiora
Fifth Defendant : Banki Haddock Fiora
Sixth Defendant : Banki Haddock Fiora
Seventh Defendant : Banki Haddock Fiora

Case(s) referred to in decision(s):

Archer Capital 4A Pty Ltd v Sage Group PLC [No 3] [2013] FCA 1160

Australian Reliance Group Pty Ltd v Coverforce Insurance Brokers Victoria Pty Ltd [No 3] [2017] WASC 60

Bennett v Chief Executive Officer, Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101

BrisConnections Finance Pty Ltd v Arup Pty Ltd [2016] FCA 438

Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181

CMA Assets Pty Ltd v John Holland Pty Ltd [No 2] [2012] WASC 126

Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341

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AGLC
Poland v Hedley [No 4] [2022] WASC 144
Case
[2022] WASC 144
Decision Date

CaseChat Overview and Summary

Poland v Hedley [No 4] involved a dispute concerning the disclosure of an informant's identity in a legal proceeding. The matter was heard in the Supreme Court of Western Australia. The dispute centred around whether the court should compel the informant to reveal their identity despite statutory provisions that generally protect the informant's anonymity. The case was pivotal in determining the balance between the public interest in maintaining the confidentiality of informants and the necessity of disclosing their identity in the interests of justice.

The central legal issue was whether the court could, under the Evidence Act 1906 (WA), override the protection afforded to informants by section 20I and direct them to provide identifying evidence under section 20J. The court had to consider whether the public interest in disclosing the informant's identity outweighed any potential harm to the informant or others, and whether the informant's conduct warranted a departure from the usual protections. The court's decision hinged on a detailed assessment of the factors outlined in section 20J(3) of the Evidence Act, including the probative value and importance of the identifying evidence, the nature of the offence, and the availability of alternative evidence.

In reaching its decision, the court meticulously examined each of the statutory factors. The court found that the public interest in disclosing the informant's identity was significant, given the nature of the alleged offences and the importance of ensuring the integrity of the legal process. The court also considered the potential harm to the informant but concluded that the means available to mitigate such harm were sufficient. Additionally, the court found no misconduct on the part of the informant or journalist, further supporting the direction to disclose the informant's identity. The court's reasoning demonstrated a careful and balanced approach to the competing interests at stake.

The final orders of the court directed the informant to give identifying evidence, thus allowing the legal proceedings to proceed with the necessary disclosure. The decision underscored the importance of judicial discretion in weighing the public interest against the rights of informants and the potential impact of such disclosure on various stakeholders.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Despite s 20I, s 20J allows the Court to direct a person referred to in s 20I to give identifying evidence: 20J. Direction to give identifying evidence(1) Despite section 20I, a person acting judicially may direct a person referred to in that section to give identifying evidence.(2) A person acting judicially may give a direction only if satisfied that, having regard to the issues to be determined in the proceeding, the public interest in the disclosure of the identity of the informant outweighs - (a) any likely adverse effect of the disclosure of the identity on the informant or any other person; and (b) the public interest in the communication of facts and opinions to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts. Without limiting the matters the Court may have regard to when directing a person to give identifying evidence, the Court must have regard to the following matters:[54][54] Evidence Act 1906 (WA) s 20J(3).(a)the probative value of the identifying evidence in the proceeding; (b)the importance of the identifying evidence in the proceeding; (c)the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; (d)the availability of any other evidence concerning the matters to which the identifying evidence relates; (e)the likely effect of the identifying evidence, including the likelihood of harm, and the nature and extent of harm that would be caused to the informant or any other person; (f)the means, including any ancillary orders that may be made under section 20M, available to the person acting judicially to limit the harm or extent of the harm that is likely to be caused if the identifying evidence is given; (g)the likely effect of the identifying evidence in relation to - (i)a prosecution that has commenced but has not been finalised; or(ii)an investigation, of which the person acting judicially is aware, into whether or not an offence has been committed; (h) whether the substance of the identifying evidence has already been disclosed by the informant or any other person; (i) the risk to national security or to the security of the State; (j) whether or not there was misconduct, as defined in section 20K(1), on the part of the informant or the journalist in relation to obtaining, using, giving or receiving information. Section 20K(1) of the Evidence Act contains a non-exhaustive definition of 'misconduct' in the following terms:(1) In this section - misconduct, in relation to an informant or a journalist, includes any of the following - (a)an offence committed by the informant or journalist; (b)an act or omission on the part of the informant or journalist that renders him or her liable to a civil penalty; (c)deceit, dishonesty, inappropriate partiality or a breach of trust on the part of the informant or journalist; (d)the informant or journalist acting corruptly, or corruptly failing to act, in any capacity; (e)the informant or journalist corruptly taking advantage of his or her position to obtain a benefit for himself, herself or another person or to cause a detriment to another person;(f)the informant or journalist engaging in conduct that adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of any person in any capacity; (g)misuse, on the part of the informant or journalist, of information or material that he or she has acquired in any capacity, whether the misuse is to obtain a benefit for himself, herself or another person or to cause a detriment to another person; (h)conduct providing reasonable grounds for the termination of the informant or journalist's employment;(i)conduct providing reasonable grounds for disciplining the informant or journalist in relation to unsatisfactory professional conduct or professional misconduct, or the breach of a professional standard, in relation to the informant or journalist's profession, whether or not he or she is a member of the body that prescribed the standard.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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