JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WEST AUSTRALIAN NEWSPAPERS LTD -v- BOND [2009] WASCA 127
CORAM: OWEN JA
WHEELER JA
BUSS JA
HEARD: 5 MARCH 2009
DELIVERED : 24 JULY 2009
FILE NO/S: CACV 110 of 2008
BETWEEN: WEST AUSTRALIAN NEWSPAPERS LTD (ACN 008 667 632)
First Appellant
MARK DRUMMOND
Second AppellantSEAN COWAN
Third AppellantAND
ALAN BOND
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :NEWNES J
Citation :BOND -v- WEST AUSTRALIAN NEWSPAPERS LTD [No 2] [2008] WASC 249
File No :CIV 2491 of 2005
Catchwords:
Actions for breach of confidence and conversion against newspaper proprietor and journalists - Discovery - Interlocutory application for inspection of audiotapes that would reveal the identity of a confidential source - Assumed application of the newspaper rule - Nature, scope and application of the newspaper rule - Meaning of 'necessary in the interests of justice' - Meaning of 'an effective remedy' - Factors to be taken into account in deciding whether to dispense with the newspaper rule
Legislation:
Nil
Result:
Leave to appeal granted
Appeal allowed
Category: A
Representation:
Counsel:
First Appellant : Mr T D Blackburn SC & Ms C Galati
Second Appellant : Mr T D Blackburn SC & Ms C Galati
Third Appellant : Mr T D Blackburn SC & Ms C Galati
Respondent: Mr M L Bennett
Solicitors:
First Appellant : Edwards Wallace
Second Appellant : Edwards Wallace
Third Appellant : Edwards Wallace
Respondent: Lavan Legal
Case(s) referred to in judgment(s):
A v Hayden [1984] HCA 67; (1984) 156 CLR 532
American Cyanamid Co v Alcoa of Australia Ltd (1993) 27 IPR 16
Attorney‑General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109
British Steel Corporation v Granada Television Ltd [1981] AC 1096
Brybay Pty Ltd (in liq) v Esanda Finance Corporation Ltd [2002] WASC 309
Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457
Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579
Coco v AN Clark (Engineers) Ltd [1969] RPC 41
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434
European Pacific Banking Corporation v Fourth Estate Publications Ltd [1993] 1 NZLR 559
Hennessy v Wright (No 2) (1890) 24 QBD 445
Herald & Weekly Times Ltd v Guide Dog Owners' and Friends' Association [1990] VR 451
Hodder v Queensland Newspapers Pty Ltd [1994] 1 Qd R 49
House v The King [1936] HCA 40; (1936) 55 CLR 499
John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; (1988) 165 CLR 346
Kerrisk v The North Queensland Newspaper Co Ltd [1992] 2 Qd R 398
Langley v The Age Company Ltd [2001] VSC 370
Lew v The Herald & Weekly Times Ltd [1999] VSC 2; [1999] 1 VR 313
McGuinness v Attorney‑General (Vic) [1940] HCA 6; (1940) 63 CLR 73
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- Case
- [2009] WASCA 127
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the court should override the newspaper rule and compel the disclosure of the confidential source's identity. The court considered various factors in deciding whether disclosure was necessary in the interests of justice, including the public interest in the free flow of information, the relevance of the information to the issues at trial, the manner in which the information was obtained, the elements of the plaintiff's causes of action, and the potential difficulties in proving the plaintiff's case without the confidential source's identity. The court also had to assess whether any difficulties in proof or other consequences of non-disclosure would unduly complicate or extend the trial, incur significant expense, or cause inconvenience to witnesses.
The court determined that, in exercising its discretion, it would ordinarily refuse to order the disclosure of a confidential source's identity unless disclosure was truly necessary to enable a proper and fair determination of the trial issues. The court held that the factors to be considered in deciding whether to dispense with the newspaper rule included the public interest in the free flow of information, the nature and significance of the information, the manner of its acquisition, and the potential impact of non-disclosure on the trial and the parties' rights. In this case, the court found that the plaintiff had not demonstrated a compelling reason for disclosure that would outweigh the public interest in protecting confidential sources.
Ultimately, the court held that the newspaper rule should apply, and the plaintiff's application for disclosure of the confidential source's identity was refused. The court's decision was influenced by the lack of a compelling reason for disclosure and the importance of protecting the free flow of information to the public interest. The defendants were granted leave to appeal, and the appeal was subsequently allowed.
ORDERS:
Leave to appeal granted
Appeal allowed
Orders
Orders of the court
Leave to appeal granted
Appeal allowed
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In European Pacific Banking Corporation v Fourth Estate Publications Ltd [1993] 1 NZLR 559, Henry J said that in deciding, at the interlocutory stage of pending proceedings, whether the 'newspaper rule' should be overridden, the first real question is whether 'disclosure is necessary, in the sense that there is a compelling reason for it, to enable a proper determination of the trial issues' (567). In my opinion, the 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. The factors 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, will depend on the facts and circumstances of the particular case, but they will, ordinarily, include the following. 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, whether the plaintiff is likely to experience real and substantial difficulty in proving any element of any cause of action without the disclosure of 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.