Al Muderis v Nine Network Australia Pty Limited (No 2) [2024] FCA 136

Al Muderis v Nine Network Australia Pty Limited (No 2) [2024] FCA 136

The issuance of subpoenas by the applicant (both the issued and proposed) is an abuse of process because they are directed to obtaining documents and confirmation of facts (the identity and communications of journalist’s confidential sources) which were subject to prior court orders upholding journalist privilege under s 126K, and which the applicant was unsuccessful in obtaining by direct application. The applicant’s attempt to obtain this information by subpoenaing third parties circumvents those orders and undermines the administration of justice. Further, the subpoenas are oppressive, burdensome, and unjust to the recipients, especially as they are not witnesses in the proceeding....

Parties
Applicant: Munjed Al Muderis; First Respondent: Nine Network Australia Pty Limited; Second Respondent: Fairfax Media Publications Pty Limited; Third Respondent: The Age Company Pty Limited; Fourth Respondent: Charlotte Grieve; Fifth Respondent: Tom Steinfort; Sixth Respondent: Natalie Clancy
Jurisdiction
Australia
Judgment Date
20 February 2024
Procedural Posture
Interlocutory Application / Application to Set Aside Subpoenas and Objection to Grant of Leave to Issue Further Subpoenas
Outcome
Application to set aside subpoenas granted; leave to issue further subpoenas refused.
Legal Topics
Abuse of Process, Journalist Privilege, Subpoenas, Confidential Sources, Legitimate Forensic Purpose
Practice and Procedure Evidence Defamation Abuse of Process Journalist Privilege Subpoenas Confidential Sources Legitimate Forensic Purpose

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Parties

Munjed Al Muderis

Applicant

Nine Network Australia Pty Limited

First Respondent

Fairfax Media Publications Pty Limited

Second Respondent

The Age Company Pty Limited

Third Respondent

Charlotte Grieve

Fourth Respondent

Tom Steinfort

Fifth Respondent

Natalie Clancy

Sixth Respondent

Procedural Posture

Interlocutory Application / Application to Set Aside Subpoenas and Objection to Grant of Leave to Issue Further Subpoenas

Legal Issues

  1. 1 Whether subpoenas issued or sought to be issued by the applicant are an abuse of process
  2. 2 Whether subpoenas have a legitimate forensic purpose and apparent relevance to the issues in the proceedings
  3. 3 Whether subpoenas seeking information that would disclose the identity of journalist’s confidential sources circumvent existing court orders upholding journalist privilege under s 126K Evidence Act 1995 (Cth)

Ratio Decidendi

The issuance of subpoenas by the applicant (both the issued and proposed) is an abuse of process because they are directed to obtaining documents and confirmation of facts (the identity and communications of journalist’s confidential sources) which were subject to prior court orders upholding journalist privilege under s 126K, and which the applicant was unsuccessful in obtaining by direct application. The applicant’s attempt to obtain this information by subpoenaing third parties circumvents those orders and undermines the administration of justice. Further, the subpoenas are oppressive, burdensome, and unjust to the recipients, especially as they are not witnesses in the proceeding....

Court Disposition

Application to set aside subpoenas granted; leave to issue further subpoenas refused.

Orders

  • The two subpoenas filed on 9 October 2023 are set aside.
  • Leave to issue the five subpoenas filed on 8 December 2023 is refused.