Liu v The Age Company Limited [2012] NSWSC 12

Liu v The Age Company Limited [2012] NSWSC 12

Rule 5.2 of the Uniform Civil Procedure Rules 2005 is not invalid or to be read down in light of the implied constitutional freedom of political communication, nor is the newspaper rule to be treated as an absolute bar. Where the requirements for preliminary discovery are met and the interests of justice so require—namely, where the applicant has made reasonable inquiries, cannot ascertain the source's identity, has a demonstrable claim, and may not have an effective alternative remedy against the media defendant—a court may order preliminary discovery, even where journalists' sources are involved and the communication concerns government and politics.

Jurisdiction
Australia
Judgment Date
01 February 2012
Procedural Posture
Application for Preliminary Discovery / First Instance Judgment
Outcome
Orders made for preliminary discovery under rule 5.2 of the Uniform Civil Procedure Rules 2005 in favour of the plaintiff.
Legal Topics
['implied Freedom of Political Communication' 'preliminary Discovery' "journalists' Confidential Sources" 'the Newspaper Rule' 'discretion to Order Discovery' 'defamation Against Unknown Source']
['constitutional Law' 'practice and Procedure' 'defamation'] ['implied Freedom of Political Communication' 'preliminary Discovery' "journalists' Confidential Sources" 'the Newspaper Rule' 'discretion to Order Discovery' 'defamation Against Unknown Source']

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Procedural Posture

Application for Preliminary Discovery / First Instance Judgment

Legal Issues

  1. 1 ["Whether rule 5.2 of the Uniform Civil Procedure Rules 2005 authorises preliminary discovery of the identity of a journalist's confidential source in the context of political communication" 'Whether the implied freedom of communication on matters of government and politics forecloses the grant of preliminary discovery' "Whether the discretionary 'newspaper rule' absolutely precludes ordering disclosure of journalists' sources" 'Whether the threshold and discretionary considerations for preliminary discovery are met']

Ratio Decidendi

Rule 5.2 of the Uniform Civil Procedure Rules 2005 is not invalid or to be read down in light of the implied constitutional freedom of political communication, nor is the newspaper rule to be treated as an absolute bar. Where the requirements for preliminary discovery are met and the interests of justice so require—namely, where the applicant has made reasonable inquiries, cannot ascertain the source's identity, has a demonstrable claim, and may not have an effective alternative remedy against the media defendant—a court may order preliminary discovery, even where journalists' sources are involved and the communication concerns government and politics.

Court Disposition

Orders made for preliminary discovery under rule 5.2 of the Uniform Civil Procedure Rules 2005 in favour of the plaintiff.

Orders

  • ['The defendants are ordered to give discovery to the plaintiff of all documents that are or have been in their possession which relate to the identity or whereabouts of the sources.']