The article was published under the headline “Fitzgibbon’s $150,000 from Chinese developer-former Defence Minister cultivated over years”. Ms Liu alleged that she had a claim for defamation against The Age in respect of that article and another article.
The Age quoted from documents that were said to be 135 pages of Ms Liu’s personal and business records “obtained by The Age after a 10 month investigation”. Ms Liu alleged that the documents were forgeries or were otherwise falsely attributed to her. She wanted to find the source of that information. She wanted to sue them. To prove that fact, she has indeed, already sued them. The statement of claim brings claims against John Doe 1, 2 and 3. Good luck serving them.
So the problem for Ms Liu was this: journalists love their confidential sources. Some go to jail to protect the identity of their sources. Some go to other places – like the High Court for instance, which is pretty much where this one might end up. But for now, Justice McCallum, in a lengthy judgment that spans 216 paragraphs and dozens of pages, depending on the size of the font, has ruled that the Age’s sources’ identities must be revealed.
Essentially, Ms Liu brought a proceeding seeking preliminary discovery of all documents from The Age as to the identities of the sources. The Age defended the claim and brought out all of their big guns. Among other things, they argued these points:
- the rule providing for preliminary discovery was constitutionally invalid insofar as it related to journalists having to reveal their sources, when discussion related to government and political matter. In that sense, they relied on the implied constitutional freedom to discuss government and political matter outlined in Lange;
- The newspaper rule (Coguangco), which provided that when a court exercises a discretion on a preliminary discovery application, a journalist’s source ought not be revealed, unless the interests of justice dictated otherwise, should now be considered to be absolute, in light of Lange. The freedom to discuss government and political matters should not be burdened at all.
Justice McCallum analysed the implied freedom to discuss government and political matters, the newspaper rule and Ms Liu’s chances as against the John Does (as compared with the claim against The Age) at great length and concluded that the sources ought to be revealed. The freedom to discuss government and political matter was not absolute. The newspaper rule was not absolute in protecting confidential sources. While The Age was worried about the “chilling effect” it will have on potential sources, its submissions were dismissed nevertheless.
The problem for The Age was that it assumed the reliability and integrity of every source. Problems arose if a source gave deliberately false information. Free speech is never as good as it sounds.
In the end, it was held that Ms Liu did have a demonstrable claim for defamation against the John Does she had better chances of success against them than against The Age, she had acted reasonably in trying to ascertain their identities, and some of the evidence indicated that the documents were forged or falsely attributed to her (paras 180, 188). So it was necessary, in the interests of justice to exercise the discretion in her favour. The Age had to give discovery of all of the documents that related to the identities of the sources.
The Court of Appeal awaits …
Justin Castelan is a Melbourne barrister who practises in defamation and media law. He has been at the Victorian Bar for 11 years and is the author of defamationwatch.com.au, a website that provides commentary on defamation cases from Australia. This post originally appeared on his Defamation Watch blog and is reproduced with permission and thanks