Bathurst CJ at [1]; Beazley JA at [107]; McColl JA at [108]
Decision:
1 Grant the applicants leave to appeal in respect of Grounds 2 to 9 of the document headed "Second Further Amended Draft Notice of Appeal" which appears behind Tab 3 of the Application Book filed in connection with these proceedings.
2 Direct the applicants to file a Notice of Appeal incorporating these grounds within 7 days of the date hereof.
3 Order that the appeal be dismissed.
4 Order that leave to appeal otherwise be refused.
5 Order that the applicants pay the respondents' costs of the application for leave to appeal and the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
CONSTITUTIONAL LAW - implied freedom of communication on matters of government and politics - Uniform Civil Procedure Rules 2005 r 5.2 - power to order disclosure of confidential source - relevance of court's discretion to order disclosure - whether rule effectively burdens freedom - whether rule reasonably appropriate and adapted to legitimate end in manner consistent with maintenance constitutionally prescribed system of government
PRACTICE AND PROCEDURE - Uniform Civil Procedure Rules 2005 r 5.2 - discretion to order preliminary discovery - whether discretion enlivened - whether reasonable inquiries made - whether unable to sufficiently ascertain the identity or whereabouts of person notwithstanding inquiries
PRACTICE AND PROCEDURE - admissibility of evidence - Evidence Act 1995 s 87 - admission by a party - whether representation made by person with authority to make statements on behalf of party - whether statements constitute admission
APPEAL - principles for grant of leave to appeal - decision not to admit evidence - whether decision attended by error
[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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AGLC
The Age Company Ltd v Liu [2013] NSWCA 26
Case
[2013] NSWCA 26
Decision Date
CaseChat Overview and Summary
The applicants, The Age Company Ltd and others, sought leave to appeal against a decision of the primary judge concerning the disclosure of a confidential source. The dispute centred on whether the Uniform Civil Procedure Rules 2005 (NSW) r 5.2, which allows for orders for preliminary discovery, could be used to compel the disclosure of a journalist's confidential source, and whether such a rule effectively burdened the implied freedom of communication on matters of government and politics. The matter was heard in the Court of Appeal of New South Wales.
The Court of Appeal was required to determine several legal issues. Firstly, it had to consider whether the primary judge erred in refusing to admit certain evidence, specifically statements made by a person alleged to have authority to make admissions on behalf of the respondent. Secondly, the Court had to assess whether the primary judge correctly exercised their discretion under r 5.2 of the Uniform Civil Procedure Rules 2005 (NSW) to order the disclosure of a confidential source, and whether the applicants had made reasonable inquiries to ascertain the identity or whereabouts of the person in question. Finally, the Court had to consider whether r 5.2, as applied in this context, placed an impermissible burden on the implied freedom of political communication guaranteed by the Australian Constitution.
The Court of Appeal granted leave to appeal on specific grounds relating to the admissibility of evidence and the exercise of discretion under r 5.2. However, the Court ultimately dismissed the appeal. The reasoning involved an analysis of the principles governing the admission of evidence and the requirements for exercising the discretion for preliminary discovery. The Court found that the primary judge had not erred in their application of these principles. Regarding the constitutional issue, the Court determined that while r 5.2 might have some incidental effect on freedom of communication, it was a rule of procedure that was reasonably appropriate and adapted to a legitimate end, consistent with the maintenance of the constitutionally prescribed system of government.
Consequently, the Court of Appeal ordered that leave to appeal be granted in respect of certain grounds, but that the appeal itself be dismissed. The applicants were ordered to pay the respondents' costs of the application for leave to appeal and the appeal.
Orders
Orders of the court
1 Grant the applicants leave to appeal in respect of Grounds 2 to 9 of the document headed "Second Further Amended Draft Notice of Appeal" which appears behind Tab 3 of the Application Book filed in connection with these proceedings.
2 Direct the applicants to file a Notice of Appeal incorporating these grounds within 7 days of the date hereof.
3 Order that the appeal be dismissed.
4 Order that leave to appeal otherwise be refused.
5 Order that the applicants pay the respondents' costs of the application for leave to appeal and the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]