The Age Company Ltd v Liu

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.