Al Muderis v Nine Network Australia Pty Limited [2023] FCA 1623

Al Muderis v Nine Network Australia Pty Limited [2023] FCA 1623

Promises of confidentiality as required under s 126K(1) of the Evidence Act 1995 (Cth) were made by the journalist to each of the 13 sources; thus, privilege was established for each. The applicant failed to establish that any public interest in disclosure of these sources' identities outweighed the likely adverse effect on sources and the strong statutory public interest in protecting journalists' ability to access confidential sources; thus, the discretion to override privilege under s 126K(2) was not enlivened and the application was dismissed.

Parties
Applicant: Munjed Al Muderis; First Respondent: Nine Network Australia Pty Limited ACN 008 685 407; Second Respondent: Fairfax Media Publications Pty Limited ACN 003 357 720; Third Respondent: The Age Company Pty Ltd ACN 004 262 702; Fourth Respondent: Ms Charlotte Grieve; Fifth Respondent: Mr Tom Steinfort; Sixth Respondent: Ms Natalie Clancy
Jurisdiction
Australia
Judgment Date
19 December 2023
Procedural Posture
Interlocutory Application (privilege Claim in Defamation Proceeding) / Ruling on Journalist Privilege During Part Heard Trial
Outcome
Application dismissed; journalist privilege upheld for all 13 sources; costs ordered against applicant.
Legal Topics
Journalist Privilege, Confidential Sources, Section 126 K Evidence Act, Override of Privilege, Public Interest Disclosure, Adverse Effects of Disclosure, Balancing Public Interest, Defamation Act Defences
Evidence Law Defamation Media Law Journalist Privilege Confidential Sources Section 126 K Evidence Act Override of Privilege Public Interest Disclosure +3 more

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Parties

Munjed Al Muderis

Applicant

Nine Network Australia Pty Limited ACN 008 685 407

First Respondent

Fairfax Media Publications Pty Limited ACN 003 357 720

Second Respondent

The Age Company Pty Ltd ACN 004 262 702

Third Respondent

Ms Charlotte Grieve

Fourth Respondent

Mr Tom Steinfort

Fifth Respondent

Ms Natalie Clancy

Sixth Respondent

Procedural Posture

Interlocutory Application (privilege Claim in Defamation Proceeding) / Ruling on Journalist Privilege During Part Heard Trial

Legal Issues

  1. 1 Whether the applicants are entitled to disclosure of the identity of 13 confidential journalistic sources who provided information to a respondent journalist.
  2. 2 Whether the respondents are entitled to claim, and have established, journalist privilege under s 126K(1) Evidence Act 1995 (Cth) in respect of those sources.
  3. 3 Whether the applicant has established a public interest sufficient to override journalist privilege under s 126K(2).

Ratio Decidendi

Promises of confidentiality as required under s 126K(1) of the Evidence Act 1995 (Cth) were made by the journalist to each of the 13 sources; thus, privilege was established for each. The applicant failed to establish that any public interest in disclosure of these sources' identities outweighed the likely adverse effect on sources and the strong statutory public interest in protecting journalists' ability to access confidential sources; thus, the discretion to override privilege under s 126K(2) was not enlivened and the application was dismissed.

Court Disposition

Application dismissed; journalist privilege upheld for all 13 sources; costs ordered against applicant.

Orders

  • Respondents' claim for journalist privilege under s 126K(1) of the Evidence Act 1995 (Cth) in respect of the 13 confidential sources be upheld.
  • Applicant's interlocutory application under s 126K(2) of the Evidence Act 1995 (Cth) for an order that s 126K(1) not apply be dismissed.