Poland v Hedley [No 4]
[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
Council of the New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236
CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48
DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303
Ferella v Official Trustee in Bankruptcy [2010] FCA 766; (2010) 188 FCR 68
Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290
Hancock v Rinehart [2013] NSWSC 1978
Hongkong Bank of Australia Ltd v Murphy [1993] 2 VR 419
Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 2] [2010] WASC 217
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
McGuinness v Attorney-General (Vic) [1940] HCA 6; (1940) 63 CLR 73
Pickering & Pickering v Edmunds, Edmunds & Smoothpool Nominees (1994) 63 SASR 357
Seven Network Ltd v News Ltd [No 10] [2005] FCA 1721
Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347; (1939) 56 WN (NSW) 108
Torcasio Developments Pty Ltd v County Park Developments Pty Ltd (Unreported, VSC, Library No SC3880D, 9 September 1991)
Vic Hotel Pty Ltd v DC Payments Australasia Pty Ltd [2015] VSCA 101
West Australian Newspapers Ltd v Bond [2009] WASCA 127
Woodings v WA Glendinning & Associates Pty Ltd [2019] WASC 54
Woodside Petroleum Development Pty Ltd v H & RE & W Pty Ltd (Unreported, WASC, Library No 970541, 3 October 1997)
TOTTLE J:
Introduction
These reasons concern two applications made by the plaintiff in this defamation action in which the plaintiff also claims damages for loss caused by an alleged conspiracy between the defendants to injure him by unlawful means.
The first application is an application for orders for the inspection of documents discovered by the first to third defendants (the media defendants).[1] The documents fall into two categories: first, there are various emails exchanged between the first defendant and an 'in-house' lawyer; and second, there are audio recordings of two telephone conversations that took place on 27 February 2019 between a confidential source and the first and third defendants.
[1] The application made by a minute of orders filed on 17 January 2022.
It is accepted that the documents in the first category were the subject of legal professional privilege as they contain pre-publication legal advice. The plaintiff contends the privilege has been waived.
As to the second category the media defendants relied on the 'journalist protection provisions' in s 20I of the Evidence Act 1906 (WA) (Evidence Act) as the basis for claiming that the audio recordings were privileged. In their submissions in opposition to this application, the media defendants relied on the 'newspaper rule' and argued inspection would enable the plaintiff to identify the confidential source with whom the first and third defendants spoke to on 27 February 2019.
The second application is an application for orders for leave to administer interrogatories to the second and third defendants.[2] The purpose of the interrogatories is to compel the second and third defendants to disclose the identity of another person described by the media defendants as a confidential source.
[2] The application made by a minute of orders filed on 17 January 2022.
Background
Parties
The plaintiff was, until 27 February 2019, the Deputy Chair of the Peel Development Commission (PDC). The first defendant was the Deputy Editor of WAtoday, an internet news business conducted by the second defendant. The third defendant is a journalist who, in 2019, was employed by the second defendant as WAtoday's political reporter. The third defendant was joined as a defendant on 12 December 2019.
The sixth defendant is a member of the House of Representatives representing the Federal Division of Canning. The fourth and fifth defendants are members of the sixth defendant's staff. The seventh defendant was a member of the Western Australian Parliament representing the State Division of Dawesville between 2017 and 2021. The plaintiff, on the one hand, and the sixth and seventh defendants, on the other, are political opponents.
The fourth, fifth and sixth defendants were joined as defendants on 19 August 2021.
The seventh defendant was joined as a defendant on 28 January 2022.
The facts - a synopsis
It is common ground that on 15 January 2019 the plaintiff attended a meeting at a restaurant in the Subiaco Hotel with a local business owner, Mr Aaron Grainger, Mrs Grainger and a representative of the PDC. The meeting was recorded. The plaintiff alleges that the recording was made in circumstances that involved a contravention of the Surveillance Devices Act 1998 (WA) (Surveillance Devices Act).
The third defendant deposed that on or around 25 January 2019 he was contacted by a regular confidential source (Source A) who informed him that a recording of a meeting would be sent to him.[3] The recording arrived 'shortly afterwards'.[4] The third defendant listened to the recording and recognised the plaintiff as one of the speakers.[5]
[3] Affidavit of Nathan John Hondros sworn 27 September 2019 [4].
[4] Affidavit of Nathan John Hondros sworn 27 September 2019 [6].
[5] Affidavit of Nathan John Hondros sworn 27 September 2019 [7].
The third defendant deposed that on 27 February 2019 he and the first defendant spoke with another confidential source (Source B).[6] Source B informed the first and third defendants that a meeting took place at the Subiaco Hotel between the plaintiff, Mr Grainger and two others. Source B said that they (Source B) had recorded the conversation at the meeting. The third defendant deposes that if he (the third defendant) disclosed the purpose for which the recording was made by Source B, it would disclose the identity of Source B.[7]
[6] Affidavit of Nathan John Hondros sworn 27 September 2019 [12]; affidavit of Kate Hedley affirmed 17 January 2022.
[7] Affidavit of Nathan John Hondros sworn 27 September 2019 [13].
On 27 February 2019 the first and third defendants wrote, and the media defendants made available for download, on the WAtoday website various versions of an article entitled 'Big Donor Quits Board after Plan to Dump Millions of Tonnes of Toxic Soil in Peel Region Revealed' (the first article).
On 28 February 2019, the first and third defendants wrote, and the media defendants made available for download, on the WAtoday website various versions of an article entitled 'Political Donor: Labor's Lobster Plan was mine, but Minister Botched it' (the second article).
Each article is based on things the plaintiff allegedly said at the meeting on 15 January 2019 at the Subiaco Hotel.
The plaintiff complains that both articles defame him.
The plaintiff alleges that one of the fourth, fifth or sixth defendants sent the recording of the 15 January 2019 meeting to the third defendant.
Pleadings
The plaintiff pleads, and the media defendants admit, that the media defendants published the first and second articles.[8]
[8] Substituted statement of claim field 12 October 2021 [5] and [11]; further re-amended defence filed 9 November 2021 [5] and [11].
The plaintiff pleads, and the media defendants deny, that the first article gives rise to the imputations that the plaintiff:[9]
1.is corrupt in that he arranges secret deals between the State government and private business people without due process;
2.exerts improper political influence over members of the State government; and
3.as 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.
[9] Substituted statement of claim field 12 October 2021 [9];further re-amended defence filed 9 November 2021 [9].
The plaintiff pleads, and the media defendants deny, that the second article gives rise to the imputations that the plaintiff:[10]
1.falsely exaggerates boasting about his political influence; and
2.exerts improper political influence over members of the State government.
[10] Substituted statement of claim field 12 October 2021 [15]; further re-amended defence filed 9 November 2021 [15].
The plaintiff pleads at par 17 of his substituted statement of claim that the media defendants' conduct has been improper, unjustifiable and lacking in bona fides in a manner which has aggravated the hurt, damage and distress suffered by the plaintiff. The matters on which the plaintiff relies as aggravating conduct include the plea at par 17.11 that the media defendants 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.
The media defendants plead that the first article was published on an occasion of qualified privilege.[11] They give particulars which included an assertion that their conduct was reasonable in all the circumstances. One such particular is that the media defendants:[12]
[W]ere satisfied as to the authenticity and accuracy of the sources of information available in preparing the First Article.
[11] Further re-amended defence 9 November 2021 [21].
[12] Further re-amended defence 9 November 2021 [21] (particular 5(d)).
The first and second defendants filed an amended defence on 1 August 2019. In the amended defence the first and second defendants included further particulars in support of their plea that their conduct was reasonable. These further particulars included the following:[13]
[13] Amended defence 1 August 2019 [19] (particulars 5(j) - (k)).
5The defendants' conduct was reasonable in the circumstances, in that:
(j)At the time of publication of the First Article, the defendants had conducted the following enquiries and/or had the following information in their possession:
(i)On or about 25 February 2019 the defendants received from a confidential source (Confidential Source 1) an audio recording of [the Meeting].
…
(iv)On or about 27 February 2019, the first defendant and Mr Hondros had a telephone call with a confidential source [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)The defendants sought and obtained legal advice in respect of the publication of the First Article, and acted in accordance with that advice. The defendants claim legal privilege in respect of the substance of the advice.
(k)the defendants believed, and the fact was that:
(i)the nature and scope of the defendants' enquiries were reasonable in the circumstances, and included seeking and obtaining responses from the plaintiff 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 the defendants' possession;
(iv)on the basis of the information in their possession, the defendants believed that what was published in the First Article was true.
The media defendants plead that the second article was published on an occasion of qualified privilege and rely on substantially the same particulars as those pleaded in support of the qualified privilege defence in respect of the first article.[14]
[14] Amended defence 1 August 2019 [21] (particulars 5(j) - (k)); further re-amended defence 9 November 2021 [23] (particular 5).
The third defendant joined in the defences relied on by the first and second defendants and a re-amended defence was filed on 9 November 2021.
In the media defendants' further re-amended defence filed on 9 November 2021 the pleas that the media defendants had sought and obtained legal advice contained in the earlier versions of the defence were deleted, thus removing the media defendants' reliance on the pre‑publication legal advice.
The fourth, fifth, sixth and seventh defendants have yet to file their defences.
The application for inspection
Relevant provisions of the Rules of the Supreme Court 1971 (WA)
Order 26 of the Rules of the Supreme Court 1971 (WA) (RSC) governs the requirements and procedures for discovery and inspection of documents.
Relevantly, O 26 r 4(2) of the RSC provides that '[i]f it is claimed that any documents are privileged from production, the claim must be made in the list of documents with a sufficient statement of the grounds of the privilege'.
Order 26 r 12 of the RSC allows a party, upon receiving a list of documents supplied on discovery which has been claimed as subject to privilege by the other party, to traverse the claims to privilege by adducing evidence either that the claim to privilege is unfounded or mistaken.
The onus of establishing privilege rests on those claiming it.[15] However, whilst the ultimate legal onus remains upon the party claiming privilege, under O 26 r 12(1) an evidential onus is cast upon the party seeking inspection if the claim for privilege is 'apparently proper'.[16]
[15] Woodings v WA Glendinning & Associates Pty Ltd [2019] WASC 54 [28] (Smith J).
[16] CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48 [33] - [34] (Owen & Steytler JJ); applied in Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 2] [2010] WASC 217 [32] (Murphy JA). See also CMA Assets Pty Ltd v John Holland Pty Ltd [No 2] [2012] WASC 126 [23] - [24] (Allanson J).
The plaintiff, in discharging this onus, is not restricted to reliance on its own affidavits. It may rely on all of the evidence that is before the court.[17]
[17] Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181 [70] (Murphy JA), [1] (Martin CJ), [2] (Newnes JA); CTC Resources NL v Australian Stock Exchange Ltd [38] - [40].
Before the discretion to order inspection can be enlivened, the Court must be satisfied that the documents are relevant to matters in issue.[18]
[18] CTC Resources NL v Australian Stock Exchange Ltd [30].
The inspection application - pre-publication legal advice
An overview of the opposing contentions
The plaintiff's contentions were to the following effect:
(a)While the pre-publication legal advice was privileged when given, relying on the principle in Mann v Carnell,[19] the plaintiff contended the privilege was waived by the pleas made in support of the qualified privilege defences in respect of both articles that:[20]
The defendants sought and obtained legal advice in respect of the publication of the First Article [and Second Article], and acted in accordance with that advice.
(b)By pleading and relying on the pre-publication legal advice in support of the qualified privilege defences the media defendants acted in a manner inconsistent with the maintenance of any claim for privilege in respect of the advice.
(c)Support for the plaintiff's argument is found in the decision in Australian Reliance Group Pty Ltd v Coverforce Insurance Brokers Victoria Pty Ltd [No 3] (Australian Reliance Group Pty Ltd),[21] in which Chaney J held (on facts which the plaintiff contended were less favourable to a waiver argument than those in the present case) that privilege had been waived.
(d)Once waived the privilege was not capable of being restored thus it is immaterial that the media defendants have attempted to 'undo' their waiver in their further re-amended defence filed on 9 November 2021.[22]
(e)The qualified privilege pleas that relied on the pre-publication advice had been part of the media defendants' defences for 27 months in which time the plaintiff's claims had been the subject of a mediation. Having supported their case by relying on the pre-publication advice the media defendants could not now withdraw the waiver.[23]
[19] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 [29] (Gleeson CJ, Gaudron, Gummow & Callinan JJ).
[20] Plaintiff's submissions in support of applications made 17 January 2022 for: inspection of discovered documents and leave to administer interrogatories [28].
[21] Australian Reliance Group Pty Ltd v Coverforce Insurance Brokers Victoria Pty Ltd [No 3] [2017] WASC 60.
[22] Plaintiff's submissions in support of applications made 17 January 2022 for: inspection of discovered documents and leave to administer interrogatories [34] - [37].
[23] Plaintiff's submissions in support of applications made 17 January 2022 for: inspection of discovered documents and leave to administer interrogatories [36] - [37].
The media defendants' contentions were to the following effect.
(a)The plaintiff's contentions do 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).
(b)This is not a case in which the content of the privileged communications had been disclosed - it is an issue waiver case.
(c)Disclosure of privileged communications will only be ordered when it is necessary to do justice between the parties. The media defendants relied on a number of decisions (to which I refer in more detail below) which emphasise that questions of waiver must be assessed by reference to the issues to be determined at trial.
(d)The further re-amended defence places no reliance on the pre-publication advice. Determining the question of whether the media defendants acted reasonably is no longer an issue that involves the pre-publication advice and therefore the interests of justice do not require that the plaintiff be permitted to inspect the pre-publication advice.
The authorities
Where a document is otherwise subject to a claim for legal professional privilege, the privilege may be lost by waiver.
Waiver occurs where there is conduct which is inconsistent with the maintenance of the privilege so as to be unfair.[24] As stated in Mann v Carnell:[25]
At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that 'waiver' is a vague term, used in many senses, and that it often requires further definition according to the context). Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received.
Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law'. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large. [footnotes omitted]
[24] Mann v Carnell [28] - [29] (Gleeson CJ, Gaudron, Gummow & Callinan JJ).
[25] Mann v Carnell [28] - [29].
The test for waiver is an objective one. The law may impute waiver even if this was not intended by the party claiming the privilege. The intention will be imputed where the actions of a party are 'plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect'.[26]
[26] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 [30] (French CJ, Kiefel, Bell, Gageler & Keane JJ).
In BrisConnections Finance Pty Ltd v Arup Pty Ltd,[27] Flick J helpfully referred to various authorities in which the basic principle stated in Mann v Carnell had been applied. By reference to those authorities his Honour identified the following propositions.[28]
(a)It is not necessary for there to be a 'specific reference' in a pleading to legal advice for a waiver to occur.[29] The test for waiver is not whether the pleadings made any express or implied assertions about the content of the privileged communications, pleaded either as a material fact or as a particular to any material fact, which might be inconsistent with maintenance of the privilege.[30] It is sufficient if a pleading implicitly puts in issue the content of an otherwise privileged communication or otherwise acts inconsistently with maintaining the privilege.
(b)It is not sufficient to found a waiver of privilege that the contents of a privileged communication may be relevant to an issue to be resolved.[31]
(c)It is not sufficient to found a waiver of privilege that a pleading puts in issue the state of mind of the person claiming the privilege.[32] The mere fact that a party pleads a cause of action that includes their state of mind as a material fact, or otherwise puts their state of mind in issue in the proceeding, does not necessarily give rise to an implied waiver in respect of legal advice that may have been received by the party, even if that legal advice may be relevant to the party's state of mind.[33] To say that a pleading of a state of mind to which legal advice is or might be materially relevant is not an adequate surrogate for the expression of principle in Mann v Carnell.[34]
(d)What is necessary to found a waiver of privilege is conduct that directly or indirectly puts the content of the privileged communication in issue.[35]
(e)The test looks to inconsistency between the disclosure that has been made by the client on the one hand and the purpose of confidentiality that underpins legal professional privilege on the other. Deploying the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege.[36]
(f)The application of the basic principle in Mann v Carnell is not free from difficulty, and questions of waiver are matters of fact and degree.[37]
[27] BrisConnections Finance Pty Ltd v Arup Pty Ltd [2016] FCA 438.
[28] BrisConnections Finance Pty Ltd v Arup Pty Ltd [16], [18].
[29] Hancock v Rinehart[2013] NSWSC 1978 [22] (Brereton J).
[30] Vic Hotel Pty Ltd v DC Payments Australasia Pty Ltd [2015] VSCA 101 [34] (Dixon AJA).
[31] Council of the New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236 [48] (Hodgson JA). See also Seven Network Ltd v News Ltd [No 10] [2005] FCA 1721 [44] (Sackville J).
[32] Ferella v Official Trustee in Bankruptcy [2010] FCA 766; (2010) 188 FCR 68 [65] (Yates J).
[33] Archer Capital 4A Pty Ltd v Sage Group PLC [No 3] [2013] FCA 1160 [24] (Wigney J).
[34] DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499 [95] (Allsop J).
[35] Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341.
[36] Bennett v Chief Executive Officer, Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101 [68] (Gyles J).
[37] Seven Network Ltd v News Ltd [No 10] [46].
The principles applied in the authorities relied on by the media defendants: Thomason v Campbelltown Municipal Council,[38] Torcasio Developments Pty Ltd v County Park Developments Pty Ltd,[39] Hongkong Bank of Australia Ltd v Murphy and Others,[40] Pickering & Pickering v Edmunds, Edmunds & Smoothpool Nominees,[41] and Woodside Petroleum Development Pty Ltd v H & RE & W Pty Ltd,[42] do not differ from those encapsulated in the propositions identified by Flick J in BrisConnections, though there are, perhaps, differences in emphasis. In particular, the media defendants relied on passages in the judgments of Smith J in Hongkong Bank,[43] and Duggan J in Pickering & Pickering,[44] that placed emphasis on the potential for unfairness in the trial process if the contents of privileged communications were in issue at the trial leaving open, on the media defendants' submission, the possibility that apprehended unfairness can be avoided by an amendment that withdraws the deployment of the privileged communications - in effect, undoing the waiver.
[38] Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347; (1939) 56 WN (NSW) 108.
[39] Torcasio Developments Pty Ltd v County Park Developments Pty Ltd (Unreported, VSC, Library No SC3880D, 9 September 1991).
[40] Hongkong Bank of Australia Ltd v Murphy [1993] 2 VR 419.
[41] Pickering & Pickering v Edmunds, Edmunds & Smoothpool Nominees (1994) 63 SASR 357.
[42] Woodside Petroleum Development Pty Ltd v H & RE & W Pty Ltd (Unreported, WASC, Library No 970541, 3 October 1997).
[43] Hongkong Bank of Australia Ltd v Murphy (437 - 438) (Smith J).
[44] Pickering & Pickering v Edmunds, Edmunds & Smoothpool Nominees.
Australian Reliance Group Pty Ltd illustrates the application of the Mann v Carnell principle. The case concerned claims of breaches of a shareholders' agreement. The defendants pleaded that they 'held a bona fide and reasonable belief that each of [them] were not in breach of the … Shareholders Agreement' and that the plaintiff was in default of the shareholders' agreement.[45] The defendants had received the benefit of legal advice. The plaintiff contended that by their pleading the defendants had waived privilege in legal advice. Chaney J adopted Flick J's identification of applicable principles in BrisConnections and said:[46]
[The defendants] were guided by legal advice obtained by Coverforce. They plead not only their state of mind as to the relevant legal issues, but also that that state of mind was reasonable and held in good faith. That, in my view, implies that the state of mind was consistent with the legal advice that they were receiving on those very questions. To assert a state of mind as to the very matters upon which legal advice was being taken, then to decline to reveal that legal advice is, in my view, to act inconsistently with the maintenance of the privilege. The plea indirectly put the contents of the otherwise privileged communication in issue. That is so notwithstanding that no specific reference to the legal advice was contained in the pleadings.
Disposition
[45] Australian Reliance Group Pty Ltd v Coverforce Insurance Brokers Victoria Pty Ltd [22].
[46] Australian Reliance Group Pty Ltd v Coverforce Insurance Brokers Victoria Pty Ltd [28].
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.
The guiding principle does not require that the concept of waiver be applied with the rigid approach for which the plaintiff 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.
If the media defendants 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.
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 defendants 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 defendants' 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.
For those reasons I am not prepared to order inspection of the pre‑publication advice.
Further, in the light of the amendment to the media defendants' 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.
The inspection application - audio recordings
The evidence
The 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.[47] The 9 November 2021 list was verified by an affidavit sworn by the third defendant 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.[48] The claim for privilege in respect of the audio recordings was expressed as follows:[49]
The content of the audio recordings would disclose the identity of an informant of the First to Third Defendants, or would enable that identity to be ascertained, and the First and Third Defendants (and through them the Second Defendant) made a promise, orally, to the informant not to disclose their identity, entitling the First to Third Defendants to object to inspection of the audio recording by reason of the operation of section 20I of the Evidence Act 1906 (WA).
[47] 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 5 November 2021; affidavit of Larina Alick affirmed 5 November 2021; affidavit of Nathan John Hondros sworn 5 November 2021.
[48] Affidavit of Nathan John Hondros sworn 5 November 2021 [2].
[49] Affidavit of Nathan John Hondros sworn 5 November 2021 [6].
The media defendants relied on affidavits sworn by the third defendant on 27 September 2019 and 17 January 2022 and on an affidavit affirmed by the first defendant on 17 January 2022.
In his affidavit of 27 September 2019 the third defendant relevantly deposed:[50]
12.On or around 27 February 2019, I spoke with a second confidential source (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 the plaintiff, 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 the plaintiff 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 defendants; 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.
[50] Affidavit of Nathan John Hondros sworn 27 September 2019 [12] - [13].
In his affidavit of 17 January 2022 the third defendant deposed:[51]
[51] Affidavit of Nathan John Hondros sworn 17 January 2022 [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 Confidential Source 2 (CS-2) in particular 5(I)(iv) of paragraph 21 of the further reamended defence filed in these proceedings on 9 November 2021. The call (First Call) was made on speaker phone, in the presence of Kate Hedley, who is the first defendant and who was, at that time, the deputy editor of WAtoday. A recording of the First Call is the first, second and third defendants' discovery document number 3.
4.Before Ms Hedley and I had had the opportunity to have any substantive discussions with CS-2 in the First Call, CS-2 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, CS-2 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 the first, second and third defendants' discovery document number 4.
6.Shortly after the Second Call commenced, before anything of substance had been discussed, I said the following to CS-2:
… 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 CS-2:
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 CS-2 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 CS-2:
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 CS-2:
Well, the other thing too is, if anybody comes to me and says have you spoken to [CS-2]? I say, uh, well no, or did any of this information come from [CS-2], 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 CS-2, because of the subject matter of the discussions and because the voice of CS-2 would enable their identity to be ascertained. Even if the voice of CS-2 were to be removed (including in instances where CS-2 is speaking over myself or Ms Hedley, and vice versa, requiring all of the entangled voices to be removed), the identity of CS-2 would still be able to be ascertained from the balance of the recordings.
10.Since the Second Call, I have not been released by CS-2 from the promises to keep CS-2's identity confidential and not to disclose it to anyone, which I made to CS-2 on the Second Call.
The first defendant's evidence as set out in her affidavit of 17 January 2022 is identical in substance to the evidence contained in the third defendant's affidavit of the same date. The plaintiff contended that the 'identical recollections' of the first and third defendants was a reason for not accepting their evidence.[52] Although neither defendant states that they refreshed their recollections of the telephone conversations with Source B by listening to the recording of the conversations or reading a transcript of them, I infer that it is likely that they did so.
[52] Plaintiff's submissions in support of applications made 17 January 2022 for: inspection of discovered documents and leave to administer interrogatories [41].
The plaintiff 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 the third defendant's mobile telephone service, he had inspected the third defendant's telephone records. Those records disclosed that a telephone call had been made from the third defendant's 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 the third defendant's number and that call lasted for 26 minutes and eight seconds. On the basis of those records and the third defendant's account of his telephone conversations with Source B on 27 February 2019 Mr Tharby believed that Source B was Mr Grainger.
Journalist protection provisions
Section 20I of the Evidence Act provides that the protection of identity of informants relied on by journalists:
20I. Protection of identity of informants
If a journalist has promised an informant not to disclose the informant's identity, neither the journalist nor a person for whom the journalist was working at the time of the promise is compellable to give evidence that would disclose the identity of the informant or enable that identity to be ascertained (identifying evidence).
A 'journalist' is defined in s 20G of the Evidence Act as:
a person engaged in the profession or occupation of journalism in connection with the publication of information in a news medium.
An 'informant' is defined in s 20G of the Evidence Act as
a person who gives information to a journalist in the normal course of the journalist's work in the expectation that the information may be published in a news medium.
There is no dispute that the second defendant was a news medium.[53]
[53] Evidence Act 1906 (WA) s 20G.
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.
Section 20K(2) of the Evidence Act governs what is to occur in the event of a finding of misconduct. The section provides that:
(2) A person acting judicially who finds that there was misconduct on the part of an informant or a journalist in relation to obtaining, using, giving or receiving information -
(a)may, but is not bound to, give a direction; and
(b)must have regard to the principles set out in subsection (3) when deciding whether or not to give a direction.
The principles specified under s 20K(3) of the Evidence Act are as follows:
(a)that generally a direction should be given if -
(i) the misconduct was the commission of an offence under The Criminal Code section 81 or a breach of a public sector standard, code of conduct or code of ethics, as those terms are defined in the Public Sector Management Act 1994 section 3(1); and
(ii)the offence or breach concerned the disclosure of information that was public interest information as defined in the Public Interest Disclosure Act 2003 section 3(1); and
(iii)the information could have been, but was not, disclosed in accordance with the Public Interest Disclosure Act 2003;
(b)that generally a direction should be given if the information given to a journalist could have been provided, in a way that did not constitute misconduct, to another person to deal with the concern;
(c)that generally a direction should be given if the information given to a journalist could have been obtained by the journalist under the Freedom of Information Act 1992 or by other lawful means;
(d)that generally a direction should be given if the misconduct involved a breach of privacy that was not warranted in the circumstances, having regard to the value to be attached to -
(i)the privacy of information regarding private citizens generally; or
(ii)the privacy of information regarding matters which may be commercial in confidence; or
(iii)the principle of Cabinet confidentiality; or
(iv)the principle of public interest immunity;
(e)that generally a direction should be given if a communication made to a journalist, if published, would give rise to a risk to national security or to the security of the State;
(f)that it is otherwise in the public interest to give or refuse to give a direction.
The newspaper rule
It is a rule of practice at common law that a court will not order a media proprietor or its journalists to disclose the identity of a confidential source of information in a defamation or related action, at least at the interlocutory stage, unless disclosure is necessary in the interests of justice or other special circumstances exist.[55]
[55] West Australian Newspapers Ltd v Bond [2009] WASCA 127 [9] (Buss JA), [1] (Owen JA), [7] (Wheeler JA).
In West Australian Newspapers Ltd v Bond[56] Buss JA (as his Honour then was) examined the authorities in which the nature, scope and application of the newspaper rule have been considered. His Honour identified eight important propositions that emerged from the authorities. Omitting the citations of authorities, his Honour stated the propositions in the following terms:[57]
First, the 'newspaper rule' exists for the protection or advancement of the public interest, and not the private interests of media proprietors or journalists.
Secondly, the rule only applies to the identity of the confidential source of information, and not to the information provided by the source to the media proprietor or its journalists.
Thirdly, the rule only applies in the context of a 'defamation or related action' or proceedings for 'defamation and, perhaps, other analogous actions'.
Fourthly, the court exercises a judicial discretion in deciding at an interlocutory stage of defamation and related actions whether to make or refuse an order which will, directly or indirectly, disclose the identity of a confidential source.
Fifthly, although it may be 'convenient' in the conduct of litigation for a party to the litigation to be informed, through the processes of discovery and inspection of relevant documents and the administration of interrogatories, of the identity of a confidential source, mere 'convenience' is not a sufficient reason, at the interlocutory stage, to dispense with the rule.
Sixthly, the mere relevance in pending proceedings of the identity of a confidential source to a fact in issue is not a sufficient reason, at the interlocutory stage, to dispense with the rule.
Seventhly, at the interlocutory stage of pending proceedings, disclosure of the identity of a confidential source, by means of discovery and inspection or interrogatories, will not be compelled unless it is 'necessary in the interests of justice' or other 'special circumstances' exist.
Eighthly, although the rule only arises, strictly speaking, in pending proceedings, it may also arise, in an analogous form, in an application for preliminary (or pre-action) discovery. (citations omitted)
[56] West Australian Newspapers Pty Ltd v Bond.
[57] West Australian Newspapers Ltd v Bond [61] - [68].
Buss JA gave detailed consideration to the meaning of the expression 'necessary in the interests of justice'. His Honour expressed the opinion that:[58]
[T]he court will ordinarily, in the exercise of its discretion, refuse to order the disclosure of the identity of a confidential source, at the interlocutory stage of pending proceedings, unless it is satisfied that disclosure is really needed or there is a compelling reason for disclosure, at that time, to enable the issues at the trial to be properly and fairly determined as between the parties; for example, to enable the plaintiff to establish the elements of a cause of action alleged in the proceedings, or otherwise to do justice between the parties.
[58] West Australian Newspapers Ltd v Bond [87].
Buss JA gave guidance as to the factors that are to be taken into account in deciding whether, in the exercise of the court's discretion and at the interlocutory stage of pending proceedings, it is necessary in the interests of justice to require disclosure of a confidential source. Whilst recognising that the relevant factors will depend on the facts and circumstances of a particular case, his Honour said that ordinarily they will include the following:[59]
First, the common law's recognition in the 'newspaper rule' of the public interest in the free flow of information by the imposition of restraints on the disclosure of the identity of a media proprietor's or journalist's confidential source of information, at the interlocutory stage of defamation and related actions, notwithstanding the relevance of the identity of the source to the issues to be tried. Secondly, whether, in the particular case, the information which the source has revealed, on a confidential basis, appears to be a matter of genuine public interest, including whether the information discloses an iniquity. Thirdly, the manner in which the information was obtained, including whether it was obtained by lawful means. Fourthly, the pleadings in the pending proceedings, including the elements of the plaintiff's causes of action, any admissions by the defendant, and the apparent reasonableness or unreasonableness of any denials or non-admissions in the defence. Fifthly, the identity of the confidential source. Sixthly, whether any difficulty in proof as a result of the non-disclosure of the identity of the source is likely materially to complicate the trial or unduly to extend its length, to involve significant expense for the plaintiff (especially an indigent plaintiff or a plaintiff with limited financial resources) or to cause significant inconvenience to a proposed witness. Seventhly, the apparent importance to the plaintiff and generally of the rights which he or she seeks to vindicate in the pending proceedings.
An overview of the opposing contentions
[59] West Australian Newspapers Ltd v Bond [89].
The plaintiff's submissions were to the following effect:
(a)The journalist protection provisions are not a protection from production of the entire document but only those parts of the document that reveal the identity of the confidential source. In so far as possible, the document should be produced for inspection with redactions or excisions made only to the extent necessary to conceal the identity of the confidential source.
(b)There was no admissible evidence of a promise to an informant that attracts the protection of s 20I of the Evidence Act.
(c)To the extent that there was evidence of a promise, Source B was not an informant because there is no evidence that they gave the first and third defendants any information in the expectation that it would be published.
(d)Source B is identifiable - in this respect the plaintiff relies on Mr Tharby's evidence summarised above and submit it is Mr Grainger and there is no reason to protect his identity.
(e)The public interest in disclosure outweighs any public interest in non-disclosure. The media defendants' qualified privilege pleas invite enquiry of the identity of the sources as a relevant consideration as to whether the publication of the defamatory material was 'reasonable in the circumstances'. As a matter of fairness and justice the media defendants should not be permitted to 'cherry pick' which circumstances are disclosed to the plaintiff.[60]
[60] Plaintiff's submissions in support of applications made 17 January 2022 for: inspection of discovered documents and leave to administer interrogatories [28].
(f)The public interest in disclosure weighs heavily in this case because of the involvement of members of the Federal Government.
(g)A consideration of the factors listed in s 20J(3) of the Evidence Act supports disclosure:
(i)the identity of the sources will have significant probative value because it will permit the plaintiff to ascertain the sequence of events so that he is not ambushed at trial;
(ii)disclosure of the identity of the sources will allow a proper assessment of the media defendants' motives for publication of the articles;
(iii)the plaintiff's defamation claim is serious in nature given the imputations;
(iv)no other meaningful information is available concerning the matters to which the identifying evidence relates;
(v)there is little evidence of the likely effect of disclosure of the sources; and
(vi)there has been misconduct as defined under s 20K(1) of the Evidence Act.
(h)There has been misconduct because the recording provided to the media defendants was made in breach of s 5 of the Surveillance Devices Act and the plaintiff's solicitors informed the media defendants that was so on 27 and 28 February 2019 and that publication would constitute a further breach of s 9(1) of the Surveillance Devices Act.
(i)The articles resulted from a conspiracy to injure the plaintiff by unlawful means.
(j)The newspaper rule is irrelevant because the privilege claimed in the lists of documents was the statutory privilege under the Evidence Act and the newspaper rule was not relied on.[61]
[61] ts 225 - 227.
The media defendants' contentions were to the following effect:
(a)The journalist protection provisions are concerned with the compellability of a journalist, who has made a promise of the nature specified in s 20I of the Evidence Act to give evidence that would disclose the identity of the informant or enable that identity to be ascertained. Those provisions are not directed to the interlocutory stages of litigation and the better view is that the issue should be resolved by reference to the newspaper rule.
(b)Although the newspaper rule was not expressly invoked in the privilege claims made in the lists of documents, the facts attracting the operation of that rule were stated and it should be open to the media defendants to rely on the newspaper rule to resist disclosure of the identity of Source B - there is no suggestion of a dispute as to what was said by the plaintiff at the meeting.[62]
(c)The interests of justice do not require the disclosure of the identity of Source B at this stage of the proceedings.
(d)The media defendants contest the plaintiff's propositions as to whether Source B was an informant within the meaning of the journalist protection provisions and, if they were, that their identity should be disclosed.
Disposition
[62] ts 229.
It would have been simpler, of course, for the media defendants 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'.[63] The facts included in the media defendants' objection to the production are sufficient to attract the operation of the newspaper rule. That the media defendants 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.
[63] McGuinness v Attorney-General (Vic) [1940] HCA 6; (1940) 63 CLR 73, 104 (Dixon J).
I accept the media defendants' contention that at this interlocutory stage the issue of whether inspection of the 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.[64] 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.
[64] Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 [168], [175] (Pritchard J).
The evidence of the first and third defendants establish that Source B was a confidential source. The first defendant'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.
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 defendants' qualified privilege plea, one of the grounds on which the media defendants 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'.[65] 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 defendants to identify which of these three people is Source B.
[65] Further re-amended defence 9 November 2021 [21] (particular 5(l)(iv)).
Further, the plaintiff'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.
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.
The application to administer interrogatories
The interrogatories
The plaintiff seeks leave to administer the following interrogatories to the second defendant:[66]
1In respect of the affidavit of Nathan John Hondros sworn 27 September 2019 (Affidavit), state whether you have any knowledge or belief as to the identity of the alleged regular confidential source described in paragraph 4 as 'Source A'.
2If the answer to interrogatory 1 is in the affirmative, state the identity of the regular confidential source described in paragraph 4 as 'Source A' as known to or believed by you.
3In respect of the Affidavit, state whether you have any knowledge or belief as to the identity of the person or persons who sent, delivered, provided or otherwise caused the recording referred to in paragraph 6 to be provided to Mr Hondros.
4If the answer to interrogatory 3 is in the affirmative, state the identity of the person or persons (as the case may be) as known to or believed by you.
[66] Plaintiff's minute of notice to second defendant to answer interrogatories filed 17 January 2022 [1] - [4].
The plaintiff seeks leave to administer the following interrogatories to the third defendant:[67]
1In respect of the affidavit of Nathan John Hondros sworn 27 September 2019 (Affidavit), state the identity of the alleged regular confidential source described by you in paragraph 4 as 'Source A'.
2In respect of the Affidavit, state whether you have any knowledge or belief as to the identity of the person or persons who sent, delivered, provided or otherwise caused the recording referred to in paragraph 6 to be provided to you.
3If the answer to interrogatory 3 is in the affirmative, state the identity of the person or persons (as the case may be) as known to or believed by you.
Source A - the evidence
[67] Plaintiff's minute of notice to third defendant to answer interrogatories filed 17 January 2022 [1] - [3].
In his affidavit sworn on 19 September 2019 the third defendant gave the following evidence about his relationship with Source A:[68]
4.On or around 25 January 2019, I was contacted by a regular confidential source of mine (Source A) who informed me that a recording of a meeting (Recording) would be sent to me.
5.Source A is a regular informant of mine and the standing arrangement I have with Source A, which has been in place for a number of years, is that I can use the information Source A provides to me, but on condition that I do not disclose Source A's identity as the source of the information Source A has provided to me.
6.The Recording arrived shortly afterwards. I played and listened to the Recording. The voices on the Recording can be clearly heard. There is also substantial noise of activity in the background in the vicinity of the meeting. The Recording is an exhibit to this affidavit.
An overview of the opposing contentions
[68] Affidavit of Nathan John Hondros sworn 27 September 2019 [4] - [6].
The parties' contentions in respect of the application for leave to administer interrogatories largely reflected their contentions in respect of the application for inspection of the audio recordings.
Disposition
Three confidential sources are referred to in court documents filed by the media defendants:
(a)Source A - referred to in the third defendant's affidavit of 27 September 2019 as a confidential source who told the third defendant that 'a recording of a meeting' would be sent to him.[69]
(b)Confidential Source 1, who is referred to in the particulars to the qualified privilege plea, as follows:[70]
On or about 25 February 2019 the first and second defendants received from a confidential source (Confidential Source 1) an audio recording of the Meeting.
(c)A confidential source, referred to in the third defendant's affidavit evidence sworn on 27 September 2019 as Source B,[71] and referred to in the first and third defendants' affidavits affirmed and sworn on 17 January 2022 and the particulars to the qualified privilege plea as 'Confidential Source 2'.[72]
[69] Affidavit of Nathan John Hondros sworn 27 September 2019 [4].
[70] Amended defence 1 August 2019 [19] (particular 5(j)(i)); further re-amended defence 9 November 2021 [21] (particular 5(l)(i)).
[71] Affidavit of Nathan John Hondros sworn 27 September 2019 [12].
[72] Amended defence 1 August 2019 [19] (particular 5(j)(iv)); further re-amended defence 9 November 2021 [21] (particular 5(l)(iv)); affidavit of Kate Hedley affirmed 17 January 2022 [3]; affidavit of Nathan John Hondros sworn 17 January 2022 [3].
I interpolate that there is some tension between the third defendant's 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.
The interrogatories are directed solely to ascertaining the identify of Source A. It is relevant to the assessment of whether the second and third defendants 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 the third defendant that the third defendant deposes took place 'on or around 25 January 2019'.
The third defendant's affidavit of 27 September 2019 establishes that Source A is a confidential source of the third defendant 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 defendants 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 defendants to answer interrogatories that would have the effect of disclosing their identity.
Conclusion
Both applications will be dismissed and I will hear the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OK
Associate to the Honourable Justice Tottle
29 APRIL 2022
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