Kumova v Davison [2021] FCA 753

Kumova v Davison [2021] FCA 753

Mr Davison failed to establish journalist privilege under s 126K(1). On the facts, he was not a journalist: his own description of the Twitter account as a platform for a cynical and cranky take on ASX operators and his pleaded purpose of defending and vindicating himself were inconsistent with the ordinary and...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
05 July 2021
Procedural Posture
Defamation Proceeding With an Interlocutory Evidence Dispute About Journalist Privilege Under Evidence Act 1995 (cth) S 126 K(1) / Determination of the Respondent's Claim to Resist Disclosure of the Identity of an Informant; Substantive Defamation Proceeding Ongoing
Outcome
The Respondent's claim to journalist privilege under s 126K(1) of the Evidence Act 1995 (Cth) was rejected in the reasons; the parties were directed to bring in short minutes of orders to give effect to the reasons.
Legal Topics
['journalist Privilege' 'identity of Informant' 'twitter Account as News Medium' 'meaning of Journalist' 'promise Not to Disclose Source']
['evidence' 'defamation'] ['journalist Privilege' 'identity of Informant' 'twitter Account as News Medium' 'meaning of Journalist' 'promise Not to Disclose Source']

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Procedural Posture

Defamation Proceeding With an Interlocutory Evidence Dispute About Journalist Privilege Under Evidence Act 1995 (cth) S 126 K(1) / Determination of the Respondent's Claim to Resist Disclosure of the Identity of an Informant; Substantive Defamation Proceeding Ongoing

Legal Issues

  1. 1 ['Whether Mr Davison was a journalist for the purposes of ss 126J and 126K of the Evidence Act 1995 (Cth)' "Whether Mr Davison's Twitter account or Twitter feed was a news medium for the purposes of s 126J of the Evidence Act 1995 (Cth)" "Whether the information from the corporate advisor was provided pursuant to a promise not to disclose the informant's identity" 'Whether any promise not to disclose identity had to be anterior to the provision of the information' 'Whether Mr Davison discharged the onus of proving the requirements of s 126K(1) of the Evidence Act 1995 (Cth)']

Ratio Decidendi

Mr Davison failed to establish journalist privilege under s 126K(1). On the facts, he was not a journalist: his own description of the Twitter account as a platform for a cynical and cranky take on ASX operators and his pleaded purpose of defending and vindicating himself were inconsistent with the ordinary and statutory concept of a journalist. His Twitter account or feed was also not a news medium because it was not primarily or substantially used for publication of news and contained substantial non-news material. Further, he did not prove, on the balance of probabilities, that any promise not to disclose the corporate advisor's identity was made before the information was...

Court Disposition

The Respondent's claim to journalist privilege under s 126K(1) of the Evidence Act 1995 (Cth) was rejected in the reasons; the parties were directed to bring in short minutes of orders to give effect to the reasons.

Orders

  • ['The parties are to bring in short minutes of orders to give effect to these reasons within fourteen days.']