Roberts-Smith v Fairfax Media Publications Pty Limited (No 3) [2020] FCA 2

Roberts-Smith v Fairfax Media Publications Pty Limited (No 3) [2020] FCA 2

The applicant failed to demonstrate clear disclosure of informant identities sufficient to displace journalist privilege under s 126K(1) of the Evidence Act 1995 (Cth); therefore, privilege remains and production of the documents sought is not ordered at this stage.

Parties
Applicant: Ben Roberts-Smith; First Respondent: Fairfax Media Publications Pty Limited; First Respondent: The Age Company Pty Limited; First Respondent: The Federal Capital Press of Australia Pty Limited; Second Respondent: Nick McKenzie; Third Respondent: Chris Masters; Fourth Respondent: David Wroe
Jurisdiction
Australia
Judgment Date
06 January 2020
Procedural Posture
Interlocutory Application in Three Defamation Proceedings / Order on Interlocutory Application Before Trial
Outcome
Interlocutory application dismissed in part, adjourned in part
Legal Topics
Journalist Privilege, Discovery, Production of Documents, Waiver of Privilege, Balance of Probabilities, Public Interest in Disclosure
Evidence Defamation Journalist Privilege Discovery Production of Documents Waiver of Privilege Balance of Probabilities Public Interest in Disclosure

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 5 Party arguments 2
Sign in to unlock

Parties

Ben Roberts-Smith

Applicant

Fairfax Media Publications Pty Limited

First Respondent

The Age Company Pty Limited

First Respondent

The Federal Capital Press of Australia Pty Limited

First Respondent

Nick McKenzie

Second Respondent

Chris Masters

Third Respondent

David Wroe

Fourth Respondent

Procedural Posture

Interlocutory Application in Three Defamation Proceedings / Order on Interlocutory Application Before Trial

Legal Issues

  1. 1 Whether journalist privilege under s 126K of Evidence Act 1995 (Cth) applies to documents recording conversations with confidential sources and/or documents provided by confidential sources
  2. 2 Whether privilege was lost because the identity of sources has already been disclosed by pleadings or outlines of evidence
  3. 3 Whether the court can inspect documents to determine disclosure or partial disclosure without infringing s 126K(1)

Ratio Decidendi

The applicant failed to demonstrate clear disclosure of informant identities sufficient to displace journalist privilege under s 126K(1) of the Evidence Act 1995 (Cth); therefore, privilege remains and production of the documents sought is not ordered at this stage.

Court Disposition

Interlocutory application dismissed in part, adjourned in part

Orders

  • Paragraphs 1, 2 and 3 of the Interlocutory application dated 11 November 2019 dismissed with costs.
  • Paragraph 4 of the Interlocutory application adjourned to a date to be fixed, parties to attempt agreement.