Duma v Fairfax Media Publications Pty Limited (No 2) [2021] FCA 1299

Duma v Fairfax Media Publications Pty Limited (No 2) [2021] FCA 1299

Documents in categories B and C and specified documents in category A should be admitted into evidence because, notwithstanding their acquisition by way of impropriety, their probative value and importance to the respondents' sole defence of qualified privilege outweigh the undesirability of admitting documents obtained in consequence of an impropriety or possible unlawfulness. The remainder of the documents were not admitted as the balance did not favour their admission. Section 135 did not warrant exclusion as there was insufficient unfair prejudice to outweigh probative value.

Parties
Applicant: William Marra Duma; First Respondent: Fairfax Media Publications Pty Limited (ACN 003 357 720); Second Respondent: Angus Grigg; Third Respondent: Jemima Whyte
Jurisdiction
Australia
Judgment Date
12 October 2021
Procedural Posture
Defamation Proceeding / Evidentiary Ruling Prior to Final Judgment
Outcome
Documents in categories B and C and specified documents in category A admitted into evidence; issue of limitation on further use reserved.
Legal Topics
Admissibility of Evidence, Improperly Obtained Evidence, Qualified Privilege, Mitigation of Damages
Evidence Defamation Admissibility of Evidence Improperly Obtained Evidence Qualified Privilege Mitigation of Damages

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Parties

William Marra Duma

Applicant

Fairfax Media Publications Pty Limited (ACN 003 357 720)

First Respondent

Angus Grigg

Second Respondent

Jemima Whyte

Third Respondent

Procedural Posture

Defamation Proceeding / Evidentiary Ruling Prior to Final Judgment

Legal Issues

  1. 1 Whether documents tendered by respondent are admissible under s 138 of the Evidence Act 1995 (Cth) as improperly obtained or in consequence of impropriety or contravention of Australian law
  2. 2 Whether the desirability of admitting the documents outweighs the undesirability of admitting evidence obtained unlawfully or improperly
  3. 3 Whether documents should be excluded under s 135 due to unfair prejudice

Ratio Decidendi

Documents in categories B and C and specified documents in category A should be admitted into evidence because, notwithstanding their acquisition by way of impropriety, their probative value and importance to the respondents' sole defence of qualified privilege outweigh the undesirability of admitting documents obtained in consequence of an impropriety or possible unlawfulness. The remainder of the documents were not admitted as the balance did not favour their admission. Section 135 did not warrant exclusion as there was insufficient unfair prejudice to outweigh probative value.

Court Disposition

Documents in categories B and C and specified documents in category A admitted into evidence; issue of limitation on further use reserved.

Orders

  • The documents in categories B and C of the respondents' schedule of documents for tender, and documents RTB 193, 247, 248, 249, 250, 355, 346, 386 and 445 in category A, be admitted into evidence.
  • The question of whether an order should be made limiting the use to which those documents should be put is reserved.