It is perhaps inaccurate to describe the first section of what follows as a development. It is really no more than a case note recording the outcome of a defamation case. It has been included because it is (to the author’s mind at least) an interesting example of extremely poor conduct on the part of a plaintiff in defamation proceedings. The facts are also interesting.
1. The case of the missing mobile phones: Palavi v Queensland Newspapers Pty Ltd & Anor [2011] NSWSC 274
To lose one mobile phone or one set of data on the phone may be regarded as a misfortune; to lose two or more looks like carelessness. Carelessness may well have been one of the reasons why a defamation action commenced in the New South Wales Supreme Court by Charmyne Palavi has been dismissed as an abuse of process.
Palavi, who has received some attention in the press (mostly self-inflicted; Google her if you must) sued the defendant, Queensland Newspapers Pty Ltd (QNP) in respect of an internet posting which appeared in the Readers’ Comments section of the Courier Mail (QNP proceedings). The proceedings were issued following an email of complaint received by QNP on 19 April 2010 from a company representing Palavi (email of complaint). The imputations said to arise can be found at paragraph 2 of the reasons. They relate to sexual proclivities.
QNP applied to have the proceedings dismissed as an abuse of process on account of Palavi having disposed of an Apple iPhone on or about 3 May 2010 and having deleted data from another Apple iPhone on 4 May 2010. Both acts occurred after the email of complaint was sent. Both acts were found by Nichols J to have been done with the intention of destroying material which may be used in evidence in the QNP proceedings.
Of central importance to QNP’s application were certain findings made by the New South Wales District Court (Colefax DCJ) in separate proceedings Palavi had brought for defamation against Radio 2UE Sydney Pty Ltd. The imputations said to arise in the 2UE proceedings also related to sexual proclivities. It will come as no surprise that these proceedings met a similar fate to the QNP proceedings.
The findings of Colefax DCJ were as follows (taken from paragraph [14] of the judgment of Nicholas J):
“72 The first Apple iPhone obtained by the plaintiff was acquired to replace the red Nokia in December 2009. It was in the plaintiff’s possession from that date until 4 May 2010. In that six month period orders for discovery were in place. The phone was not referred to in any of the many pieces of correspondence or various Lists of Documents sent or prepared by the plaintiffs solicitors until the letter of 26 August 2010. It was subsequently referred to in a List of Documents in Part 2 – an admission that it contained relevant material No explanation has ever been provided as to why it was not discovered and made available for inspection before it was damaged and replaced on 3 May 2010; nor why it was not made available for inspection after it was allegedly damaged; nor what the nature of the contents were.
73 In my opinion, that phone was deliberately disposed of by the plaintiff to avoid complying with the order for discovery.
74 The plaintiff’s second Apple iPhone is still in her possession. It has not been discovered; nor was it referred to in any document prepared for or on behalf of the plaintiff until her affidavit of 13 September 2010.
75 The plaintiff denies it contains any relevant material. She accepts however that on 4 May 2010, the day she acquired it, she “synced” it with her computer and as a result a number of photographs were downloaded from the computer onto the phone. She denies that they were relevant material; rather, she says, they were photographs taken by her children.
76 There is no doubt from the plaintiffs own Facebook postings, to which I have already referred, that on 4 May 2010 certain photographic material was loaded onto that phone and subsequently deleted by the plaintiff.
77 Given my findings regarding black and gold Nokia, the Prada, the red Nokia mobile phones and the first Apple iPhone, I do not accept the plaintiff’s evidence that the images deleted were her children’s photographs. In my opinion, on the balance of probabilities, it (like the phones it replaced, viz the red Nokia and the first Apple iPhone) contained relevant material and has been deliberately withheld.
…
89 In my opinion:
…
(b) The non-discovery has been deliberate and without excuse or justification and in breach of repeated orders by the court. It constitutes a gross abuse of process.”
[emphasis added]
To the extent Palavi could have taken advantage of s 91 of the Evidence Act 1995 (NSW) — the effect of which would have rendered the findings of Colefax DCJ inadmissible to prove the fact of the deliberate disposal of iPhone number 1 and the deletion of material from iPhone number 2 — she, by her counsel, expressly waived her statutory entitlement: see [2011] NSWSC 274 at [23].
In the light of this, Nicholas J had before him evidence that after QNP received Palavi’s email of complaint (19 April 2010) she:
(a) deliberately disposed of her first iPhone to avoid complying with discovery in the 2UE proceedings;
(b) never explained why she failed to disclose her first iPhone in the 2UE proceedings and never made it available for inspection after it was damaged; and
(c) deliberately deleted (and therefore withheld from disclosure) images from her second iPhone.
It was, quite properly, accepted by Nicholas J that at the times which the disposal and deletion occurred Palavi “had in contemplation the probability or, at least, the possibility of the institution of proceedings” against QNP.
With the benefit of this evidence, Nicholas J applying the following principles set out by the Victorian Court of Appeal in British American Tobacco Australia Services Ltd v Cowell [2002] 7 VR 524 at [173]:
” … there being no authority directly in point, we consider that this court should state plainly that where one party alleges against the other the destruction of documents before the commencement of the proceeding to the prejudice of the party complaining, the criterion for the court’s intervention (otherwise than by the drawing of adverse inferences, and particularly if the sanction sought is the striking out of the pleading) is whether that conduct of the other party amounted to an attempt to pervert the course of justice or, if open, contempt of court occurring before the litigation was on foot …”
and Johnson J in Clark v State of New South Wales (2006) 66 NSWLR 640 at [103]:
“remedies available in [the case of destruction] are not confined to the drawing of appropriate inferences. If the conduct of the destroying party may be characterised as an abuse of process, then the power of the court to stay or dismiss proceedings may be utilised in an appropriate case”
was satisfied (to the appropriate standard) that Palavi’s acts “had a tendency, and were intended, to pervert the administration of justice.” He added, at paragraph [35]:
“ … by so acting the plaintiff denied the court and the defendants’ knowledge of the true circumstances of the case and thereby perverted or obstructed the capacity of the court to do justice. She intentionally jeopardised the prospect of these proceedings being justly heard and determined. In today’s parlance, she ensured there would be no level playing field for any trial of these proceedings.”
While this case does not establish any new principle it is (quite apart from its remarkable facts) useful for two reasons. The first is that it should provide a useful illustration of the potential dangers in making factual concessions (as Palavi’s counsel did) and, secondly, it is a fine and (hopefully) rare example of a court issuing an appropriate sanction on account of disgraceful conduct on the part of litigants.
2. The newspaper rule and journalists’ sources: the action for breach of confidence and recent amendments to the Evidence Act 1995 (Cth)
The second development looks at the application of the newspaper rule to proceedings other than defamation proceedings and recent amendments to the Evidence Act 1995 (Cth).
Whatever praise or criticism may be offered in support of or in opposition to the newspaper rule, it continues to form part of the law of defamation in Queensland. The rule operates to protect a media defendant from being required to disclose its sources of information upon discovery procedures before trial. Relevantly, the rule:
(a) has no application at trial;
(b) will only protect a defendant against disclosure prior to the hearing of the action;
(c) does not accord absolute protection;
(d) operates such that disclosure will not be compelled at an interlocutory stage of “a defamation or related action” (John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 354) unless it is necessary to do justice between the parties; and
(e) only applies to protect the identity of a source and not the information provided by the source.
The justification for the rule is rooted in the public interest in the free flow of information. As Davies JA and Byrne J observed in Hodder v Queensland Newspapers Pty Ltd [1992] 1 Qd R 49 at 56:
“There is a public interest in the free flow of information on matters of general concern. An apprehension that exposing confidential sources prejudices that interest by diminishing the media’s capacity to report crimes, official misconduct or other public dangers and abuses largely accounts for the ‘newspaper rule’ of practice.”
In practice the rule most commonly arises in defamation actions and, on most occasions, is relevant where a plaintiff is attempting to defeat a defence of qualified privilege, honest opinion, fair comment and perhaps now the defence of “honest comment”: see Spiller & Anor v Joseph & Ors [2010] 3 WLR 1791.
Notwithstanding the context in which rule most commonly arises, the media are, of course, periodically confronted with other causes of actions some of which relate to the receipt by them (or their agents and employees) of information from sources.
The cause of action for injurious falsehood (despite the difficulties in establishing malice and proving special damage) is an example of another cause of action used against media defendants. It is perhaps now more commonly called into aid in the light of the restrictions placed on corporations from entertaining proceedings for defamation (see s 9 of the Defamation Act 2005).
In addition, the media are from time to time met with claims to protect confidential information (and perhaps private information: ABC v Lenah Game Meats (2001) 208 CLR 1 at [42] per Gleeson CJ) in the form of an action for breach of confidence. This cause of action, while not yet fashionable in the media context, is a potentially more attractive means by which a plaintiff may vindicate his or her rights against a media defendant for at least three reasons:
First, an action for breach of confidence, unlike defamation, is not defeated because the information published is true.
Second, it is arguable that the traditional requirement of the law of confidentiality generally thought to require a pre-existing duty of confidentiality, pre-supposing an existing relationship between the plaintiff and defendant is not as strict as it once was: Lenah at [34] to [39, [296], [297] and [301].
Third, the traditional concept of what the law of confidence protected as “confidential” is sufficiently malleable to capture “private information”: Lenah at [34], [39], [41] to [43].
Australian law has not maintained the pace set by English courts in protecting privacy. Whether this will change is anyone’s guess. However the potential attraction of a cause of action for breach of confidence action is obvious. When and if the time comes for an Australian court to properly consider the issue it will no doubt be confronted with how it is to properly decide what information is to be protected and by what principles that information should be protected. The question is made even more difficult by the various overlapping interests each cause of action in defamation and confidence possess. For a more detailed consideration of these issues see Chapter 7 of Tugendhat and Christie: The Law of Privacy and the Media, 2nd ed (2011).
Against this background, it is not difficult to envisage a situation where a journalist will receive information (in whatever form) which may be sufficiently confidential or private such as to found a cause of action. The question becomes whether in these cases (and the case of injurious falsehood) the newspaper rule should apply. Bearing in mind the public interest justification for the rule identified by Davies JA and Byrne J it may seem somewhat incongruent if it did not. It does however seem that on the present state of authorities the answer is that it does not apply to either.
In AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1484, AMI claimed against the defendants, which included Fairfax, injunctive and other relief in respect of an article Fairfax proposed to publish about it. The article was said to be based on information provided to Fairfax in breach of confidence. It was also said to convey “false imputations injurious to AMI”. As part of interlocutory processes, Fairfax purported to disclose a transcript of a recorded interview between one of its journalists and the source of the information alleged to have been provided in breach of confidence. The transcript was provided in redacted form and AMI sought disclosure of an unredacted version. Fairfax resisted the application and sought to invoke the newspaper rule. In rejecting its applicability to cases of injurious falsehood and breach of confidence Brereton J observed (at [49] and [50]):
“In my view, it is highly doubtful that the newspaper rule applies to a proceeding such as the present. The defendants have argued that it does so, on the basis that injurious falsehood is analogous to defamation, and that the law in Australia is not identical to that in England (where the House of Lords has held that the rule is confined to defamation actions and did not extend to actions for breach of confidence) [British Steel Corporation v Granada Television Ltd [1981] AC 1096, 1197, 1203]. It is true that the judgment of the High Court in Cojuangco refers to “defamation or related action” [354] and “defamation, perhaps other analogous actions” [356]. It would be surprising, in the light of the strong endorsement of the majority judgment in Granada Television to be found elsewhere in the judgment of the High Court, if it were intending by those incidental words to cast doubt on the House of Lords’ rejection of the extension of the rule to actions for breach of confidence. I see nothing in Cojuangco which suggests that Granada should not be followed in that respect.
…
In this case, no question of defamation arises. The defendants contended that an action for injurious falsehood was analogous to one for defamation. In my opinion there are significant reasons for not accepting that submission, the principal one being that, in an action for defamation, justification or proof of truth of the imputations is cast upon the defendant newspaper, whereas in an action for injurious falsehood proof of falsity and malice falls upon the plaintiffs. That is a significant reason for concluding that the special dispensation afforded to newspaper defendants in defamation proceedings ought not be available in injurious falsehood actions. In my view, I should follow the House of Lords, in the absence of doubt having been cast on the correctness of its decision by the High Court, and hold that the rule does not extend to actions for breach of confidence; nor would I extend it for actions for injurious falsehood.”
With respect, and leaving to one side whether this view is the correct one, the reasoning is not overly convincing. It is based on several propositions. The first is that the correct interpretation of Granada is that it purports to limit the operation of the newspaper rule to libel or slander. The second is that the High Court of Australia tacitly accepted that the rule was so limited because it strongly endorsed another aspect of the House of Lord’s reasons. The third is that because the relevant burden and onus of proof in defamation actions differs from injurious falsehood the newspaper rule should not apply. Each of these propositions is not without difficulty.
As to the first and second propositions, on my reading of the speeches of the members of the House of Lords the decision in Granada does not, expressly at least, disavow the potential for the newspaper rule to apply to causes of actions other than libel and slander. Lord Salmon said the rule should not be confined to libel alone (at 1188); Lord Wilberforce did not comment on the applicability to other causes of action (at 1174); Viscount Dilhorne said it applied to cases of libel and slander but did not specifically comment on the applicability to other causes of action (1179 and 1184); Lord Fraser said it only applied to libel actions without explaining why, observing that he would “ be reluctant to support a rule whose boundaries are so ill defined” ( at 1197 and 1199); and Lord Russell observed that the facts of the case had “not even marginal connection with any concept of ‘freedom of the press’” and did not, expressly at least, suggest the rule was limited to libel cases (at 1203).
As to the third proposition, the reasons fail to appreciate that the most common scenario in which the newspaper rule invoked is in a context where a plaintiff seeks to defeat a defence on account of a defendant’s malice. That task is one which the plaintiff bears the evidential and legal onus of proof. There is no reason, let alone a compelling one, why the incidence of the burden of proof should be relevant to the newspaper rule.
Accepting for the moment that Hodder remains sound law and that one of the justifications for the newspaper rule is the public interest in the free flow of information on matters of general concern there is an argument that the rule should apply equally (or not at all) to actions against the media whether they be brought to protect reputation, privacy or confidentiality. To limit the rule to defamation and not the other causes of action identified would seem consistent with diminishing the media’s capacity to report crimes, official misconduct or other public dangers and abuses.
That question will not however be finally determined in any proceeding in a federal court or an ACT court. On 12 April 2011 the journalists’ privilege amendments to the Evidence Act 1995 (Cth) commenced operation. Section 126H(1) of this Act creates a presumption in favour of the protection of a journalists’ sources. The section provides:
“ (1) If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be ascertained.”
The phrases “journalist” and “informant” are broadly defined in section 126G in this way:
“informant means a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium.”
“journalist means a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium.
The term “news medium” is defined in the same section as “any medium for the dissemination to the public or a section of the public of news and observations on news”.
Section 126H(2) provides a means by which the presumption may be displaced. It provides:
“(2) The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs:
(a) any likely adverse effect of the disclosure on the informant or any other person; and
(b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.”
The amendments seem to be of wide import and capable of extending beyond ‘traditional’ journalism. For example an avid and active amateur blogger would seemingly fall within the definition of “journalist” and the blog would appear to be “news medium”.
Based on the context in which the new sections appear, the preferred construction of the amendments would seem to favour an approach which protects an informant’s identity from disclosure unless the “public interest” in its disclosure outweighs the matters listed in sub-sections (2)(a) and (b). The amendments provide no assistance in identifying the type of public interest that might favour the disclosure of an informant’s identity.
It will be of interest to see what practical measure of protection the amendments will provide journalists. That measure will only be determined when courts are asked to compel disclosure of an informant’s identity. Because the amendments provide no real practical guidance as to their intended operation, some of the issues which will undoubtedly arise will be:
(1) how the court is to properly balance the considerations identified in sub-section 126(2);
(2) what facts should guide a court in determining what is in the “public interest”, bearing in mind that matters interesting to the public are not necessarily in the public interest;
(3) how the court is to properly assess the “likely adverse effect of the disclosure on the informant or any other person”.
Presumably any court applying section 126H(2) will endorse an approach that each case has to be judged on its own facts having regard to its specific circumstances. However if the spirit of the amendments are to be given proper effect it would seem reasonable that sub-section 126H(2) should only apply if there is a pressing need for disclosure. The amendments are worded such that they have the effect of elevating the ability of the press to freely enquire, investigate and report on matters of public interest without fear of their sources being publically disclosed. The provisions do not purport, on my reading at least, to confer an equal status to the competing interests of protecting a source and its disclosure, rather, they proceed on the assumption that the protection of the source’s identity is paramount and will only be disclosed if it be demonstrated that there is a greater public interest which outweighs the presumption in favour of non-disclosure. Whether that is how the provisions are applied remains to be seen.
Patrick McCafferty
