Roberts-Smith v Fairfax Media Publications Pty Limited (No 3)

In Roberts-Smith v Fairfax Media Publications Pty Limited (No 3), the applicant sought an order for the production of various documents to the Court for inspection. These documents, claimed to be privileged under section 126K of the Evidence Act 1995 (Cth), pertained to conversations with confidential sources and documents provided by such sources. The respondents, Fairfax Media Publications, argued that disclosing these documents would breach ethical duties under the Journalist Code of Ethics and potentially reveal the identity of their confidential sources. The primary legal issues revolved around whether the Court could inspect the documents to determine if there had been a disclosure and whether any part of the documents could be disclosed without infringing section 126K(1) of the Act. Additionally, the court had to consider whether the privilege was lost when outlines of evidence were filed in the proceedings and whether the identities of the sources had been disclosed through the publications, pleadings, and outlines of evidence.

The court found that there was no specific rule empowering it to order the inspection of the documents. The court considered the balance of probabilities in determining whether there had been a disclosure and acknowledged that the privilege might have been waived by the filing of the outlines of evidence. The court also noted that no application was made under section 126K(2) of the Act to exempt section 126K(1) from applying. Ultimately, the court dismissed paragraphs 1, 2, and 3 of the interlocutory application with costs but adjourned paragraph 4 to allow the parties to agree on an appropriate order for indicating witnesses prior to the trial.

The final orders were that paragraphs 1, 2, and 3 of the interlocutory application be dismissed with costs, while paragraph 4 was adjourned to a date to be fixed, giving the parties an opportunity to agree on an appropriate order. This decision underscores the delicate balance between journalistic privilege and the need for transparency and fairness in legal proceedings.