Al Muderis v Nine Network Australia Pty Limited

Introduction 1 Dr Munjed Al Muderis, an orthopaedic surgeon, is suing three media companies, two individual journalists and a television presenter for defamation in relation to television and newspaper publications in September 2022. The suit arises from the following publications about Dr Al Muderis (each of which is admitted by the respondents to be of and concerning him): (a) broadcasting a pre-publication promotion of a 60 Minutes program on 8 and 9 September 2022. (b) broadcasting an episode of Channel 9's 60 Minutes current affairs program on 18 September 2022; (c) publishing articles in The Age and Sydney Morning Herald (SMH) newspapers the next day, 19 September 2022; (d) publishing online articles on the The Age and SMH websites from 19 September 2022 (and republications of those articles in other media and social media relied upon for damages only); and (e) publishing a video on The Age website from about 22 September 2022. 2 The publications sued upon contain criticisms of Dr Al Muderis' conduct of his medical practice in relation to a kind of amputee implant prosthetic procedure known as osseointegration. The substantive proceeding is being heard by Abraham J. A part-heard trial has taken place for some six weeks before her Honour. Dr Al Muderis' case has closed and the respondents' case has commenced. The trial is due to resume in March 2024. 3 Ms Charlotte Grieve was the main journalist involved in the investigation into allegations about Dr Al Muderis, and is one of the journalists he sues. Dr Al Muderis seeks to know the identity of 13 of the sources of information provided to Ms Grieve. The respondents have refused to disclose their identities, claiming statutory journalist privilege not to do so. Dr Al Muderis challenges the existence of the privilege and alternatively seeks the overriding of the privilege. 4 Hearing and determining this dispute would have required Abraham J to make credit findings about Ms Grieve, which in turn could amount to pre-judgment about her in the substantive proceeding. The dispute was allocated to my docket to avoid that problem. 5 This is therefore a separate adjudication on whether those claims of journalist privilege over the identity of those sources of information have been made out, and on the enlivening of a discretion to override the privilege, if established, to order disclosure of the identities of any of those 13 sources to whom the privilege is found to apply. 6 If the discretion is enlivened, it would ordinarily be exercised to override the privilege. The respondents have not suggested otherwise.

The nature of the dispute and the conclusions reached 7 Journalist privilege not to disclose the identities of the 13 sources is asserted by the respondents, including Ms Grieve, under s 126K(1) of the Evidence Act 1995 (Cth). Dr Al Muderis' primary case is that the privilege is not established under s 126K(1) for any of the 13 sources. His alternative case is that if journalist privilege is established for any of the sources, the discretion in s 126K(2) to order that s 126K(1) does not apply should be found to be enlivened, and the Court should therefore exercise the discretion and order disclosure. 8 The discretion in s 126K(2) is enlivened if Dr Al Muderis satisfies the Court that the public interest in disclosure of evidence of the identity of each of the sources outweighs: (a) any likely adverse effect of that disclosure on the source (or anyone else, which is not raised by the respondents): s 126K(2)(a); and (b) the public interest in the communication of facts and opinion to the public by news media, including the ability of the news media to access sources of facts: s 126K(2)(b). 9 The respondents contend that the discretion is not enlivened because the public interest in disclosure of the identity of any of the sources does not outweigh the public interest in not doing so and the likely adverse effect on 12 of the 13 sources. 10 The identities of many other sources of information given to Ms Grieve have been disclosed, including medical practitioners who were previously not identified, but who now are, some of whom are witnesses for the respondents. Many former patients of Dr Al Muderis are identified and some are witnesses for the respondents. The identities of a subset of former patients of Dr Al Muderis have not been disclosed by reason of a claim of journalist privilege. That claim has not been challenged by Dr Al Muderis. 11 It is convenient to refer to each source the subject of the claim of journalist privilege as an asserted confidential source by the letters "CS", followed by a numeral used in the evidence and submissions. The disputed claim of journalist privilege, and the dispute as to exercising the discretion to require the disclosure of each identity if such a claim is made out, relates to sources referred to as CS#1 to #4, #6, #7, #9 and #11 to #16. Each source is referred to by male pronouns in these reasons, reflecting the system used in evidence and submissions. 12 For the reasons that follow, I have decided that: (a) The promise not to disclose the identity of a source required by s 126K(1) was given by Ms Grieve to each of the 13 sources whose identity is sought by Dr Al Muderis. Accordingly, I find that journalist privilege has been established for all 13 confidential sources. (b) The discretion to compel disclosure of the identity of the 13 confidential sources under s 126K(2) has not been enlivened because: (i) The public interest in the disclosure of evidence of the identity of any of the 13 confidential sources relied upon by Dr Al Muderis has not been demonstrated to be substantial in the circumstances of this case, and does not outweigh the substantial public interest in non-disclosure under s 126K(2)(a). (ii) Additionally, the public interest in the disclosure of evidence of the identity of 12 of the 13 confidential sources (other than CS#16) has not been demonstrated to be substantial in the circumstances of this case, and does not outweigh the combined effect of the limited likely adverse effect of that disclosure on those 12 confidential sources under s 126K(2)(a) and the substantial public interest in non-disclosure under s 126K(2)(b).

Pleaded imputations, defences, and reliance on confidential sources in the publications 13 A subset of the pleaded imputations is relied upon for this privilege dispute by Dr Al Muderis, as isolated in the affidavit of his solicitor, Mr Nicholas Pullen, are as follows (inserting headings in italics underlined to identify the publications from which these imputations are drawn): 60 Minutes [13.13] Al Muderis cares more about his reputation, status, profits and the media than properly caring for his patients. [13.14] Al Muderis runs his surgical practice as a numbers game, focussing on getting large numbers of patients to have the surgeries and then neglecting their care afterwards. [13.17] Al Muderis preyed on patients who were vulnerable both physically and mentally in order to exploit them for his own financial gain. [13.19] Al Muderis's conduct of his business as a numbers game, exploiting vulnerable patients, was appalling and beneath contempt. The Age and SMH articles and online articles [16.12] Al Muderis negligently failed to identify and treat an infection developed by Mark Urquhart post-surgery that developed into osteomyelitis, a chronic infection to the bone, causing him to become wheelchair bound and with chronic severe pain. [16.16] Al Muderis prioritised growing his practice over patient care, operating on patients who were not suitable for the surgery, talking up positive outcomes and downplaying risks to get patients to agree to surgery. [16.25] Al Muderis is negligent in his selection of patients for osseointegration surgery, causing life changing and life destroying consequences to patients. Video on The Age website [28.5] Al Muderis employs high pressure sales tactics to the detriment of his patients in order to grow his business at all costs. [28.7] Al Muderis's treatment of his patients is unacceptable in his failure to treat post-surgery complications. [28.8] Al Muderis's practice of osseointegration surgery is unethical and dangerous. [28.9] Al Muderis has falsely misrepresented a rosy image of his surgical practice to the public when in fact it is unethical and dangerous. 14 I proceed upon the basis that the above constitutes the pleaded imputations that Dr Al Muderis considers best advance his case. Although I have considered all of the remaining pleaded imputations, I do not need to refer to them specifically in these reasons as no substantive argument was advanced by reference to them. 15 In the greater part, the conveying of the pleaded imputations is not denied by the respondents, with the main defences being justification (substantial truth), public interest and honest opinion under, respectively, ss 25, 29A and 31 of the Defamation Act 2005 (NSW). By way of summary overview: (a) the justification defence turns on the respondents proving the defamatory imputations found or admitted to have been conveyed are substantially true; (b) the public interest defence turns on the respondents establishing: (i) that the defamatory matter (that is, each publication) concerned an issue of public interest, which is not in dispute in the case; and (ii) that they reasonably believed that each publication was in the public interest at the time of publication; and (c) the honest opinion defence turns on the respondents establishing that each publication was an expression of opinion by the respondents, by their employee or agent, or by a commentator, rather than a statement of fact, related to a matter of public interest and was based on proper material. 16 By Mr Pullen's affidavit, Dr Al Muderis characterises the respondents as having attributed a number of allegations in the publications sued upon to confidential sources, including anonymous medical practitioners, and isolates and thereby relies upon the following statements from those publications: [23] The following statement appears at paragraph 5 of the SMH Article and The Age Article (which are Annexures C and E to the Statement of Claim, respectively): But now more than 25 patients, 15 surgeons and a dozen of Al Muderis' current and former business associates have told the Herald and 60 Minutes of concerns about the surgeon's approach to patient selection and aftercare. He has also been accused of using high-pressure sales tactics to boost patient numbers. [24] The following statement appears at paragraph 6 of the SMH Online Article and The Age Online Article: When Mark Urquhart's new doctors saw the state of his legs, they were horrified. [25] The following statement appears at paragraph 16 of the SMH Online Article and The Age Online Article (which are Annexures D and F to the Statement of Claim, respectively): Interviews with more than 25 patients, 15 surgeons and a dozen of Al Muderis' current and former business associates have raised serious questions around the professor's approach to patient selection and aftercare. [26] The following statement appears at paragraph 20 of the SMH Article and paragraph 23 of The Age Article: Interviews with more than 25 patients, 15 surgeons and a dozen of Al Muderis' current and former business associates have raised questions about the professor's approach to patient selection and care. [27] The following statement appears at paragraph 44 of the SMH Article and paragraph 46 The Age Article: But Shona, some of his patients and other surgeons say the criteria broadened to the point where Al Muderis developed a reputation for rarely saying no. [28] The following statement appears at paragraph 58 of the SMH Online Article and The Age Online Article: But Shona, some of his patients and other surgeons say that, as he performed more surgeries and became more confident, the criteria broadened to the point where Al Muderis developed a reputation for rarely turning anyone away. [29] The following statements appear at paragraphs 63-64 of the SMH Article and paragraphs 65-66 The Age Article: A number of high-profile surgeons working in Australia's largest hospitals disagree. Speaking anonymously because they were not authorised or not willing to speak publicly, they said Al Muderis' "aggressive" approach to surgery has been described as an "open secret". One described Al Muderis' patient selection as "entirely inappropriate". A man, "who was homeless, psychotic, living under a bridge, came to us in acute psychosis 72 hours after the treatment", the surgeon said. [30] The following statements appear at paragraphs 95-98 of the SMH Online Article and The Age Online Article: A number of high-profile surgeons working in Australia's largest hospitals disagree. Speaking anonymously because they were not authorised or not willing to speak publicly, they said Al Muderis' "aggressive" approach to surgery has been described as an "open secret" in the medical fraternity. One described Al Muderis' patient selection as "entirely inappropriate". A man, "who was homeless, psychotic, living under a bridge, came to us in acute psychosis 72 hours after the treatment", the surgeon said. "He was found at St Leonards station walking on his prosthetic stump that was infected." Osseointegration "was never intended to be done en masse," said another, "It's not something that you should be banging into everybody." A third described an anorexic woman who was a pathological exerciser, and who had her legs amputated after an infection. Al Muderis gave her osseointegration so she could continue running. "If you interview the patient, she will say it was done right," said the surgeon. "But if this person wants to pathologically exercise, we shouldn't enable that." The paragraph numbering referred to by Mr Pullen is the numbering that has been added to the publications as annexed to the statement of claim, in the conventional pleading manner, for ease of navigation and identification. The "Shona" referred to in the article extracts at [27] and [28] of Mr Pullen's affidavit reproduced above is a nurse formerly employed by Dr Al Muderis, Ms Shona Stewart. 17 It can readily be seen from Mr Pullen's narrative as to the source of each of the above extracts that they are from the SMH newspaper article or online article, and/or The Age newspaper article or online article. I proceed upon the basis that the above extracts from those publications constitute the parts that Dr Al Muderis considers best advance his case. Although I have considered all of the rest of the publications, I do not need to refer to the text or transcript of the balance of them specifically in these reasons as no substantive argument was advanced by reference to them.

Section 126K and the applicable principles 18 It is convenient to commence with the state of the law before the enactment of the provisions creating journalist privilege in the Evidence Act. The protection of the identity of journalists' sources has long been known as a matter of professional ethics and integrity. This is a matter of common knowledge and is reflected in the authorities. However, there was no common law immunity from disclosure of a source's identity when such disclosure was found by a court to be necessary in the interests of the administration of justice: see British Steel Corporation v Granada Television Ltd [1981] AC 1096 at 1169-1170 (Lord Wilberforce) and at 1179-1181 (Viscount Dilhorne). 19 The conclusion reached by the House of Lords in Granada is more nuanced than the above bare statement of principle would suggest. Lord Wilberforce quoted with approval the observations of Lord Denning MR in the contempt of court case of Attorney-General v Mullholland; Attorney-General v Foster [1963] 2 QB 477 at 489-490. That passage, also quoted by Viscount Dilhorne, was to the effect that: (a) the only profession subject to a privilege from disclosing certain information to a court was the legal profession, being the privilege of the client, and that it did not extend to other professions such as the clergy, bankers or doctors; (b) that did not mean that confidences of those kinds would not be respected, because a direction to a witness to answer such a question will entail a judge weighing the conflicting interests between a professional maintaining a confidence and the ultimate interest in justice being done; (c) if a judge determined a question going to identity of a source was relevant, proper and necessary in the administration of justice, the journalist must answer as there was no immunity or privilege not to do so. 20 Both Lord Wilberforce and Viscount Dilhorne in Granada agreed with what had been said on this topic by Dixon J in McGuiness v Attorney General of Victoria [1940] HCA 6; 63 CLR 73 at 102-103. In McGuiness, the editor of a newspaper who was called to give evidence at a royal commission inquiring into corruption claimed he could not be compelled to disclose the source of information confidentially obtained either at that royal commission or at any subsequent trial in a court. That claim failed. The passages from Dixon J in McGuiness that were referred to by Lord Wilberforce and quoted by Viscount Dilhorne in Granada: (a) referred to the "inevitable conflict between the necessity of discovering the truth in the interests of justice on the one hand and on the other the obligation of secrecy or confidence which an individual called upon to testify may in good faith have undertaken to a party or other person"; (b) referred to a refusal to compel discovery of the names of informants in libel proceedings, grounded in the limitations of discovery, as a rule of practice rather than a rule of law (commonly known as the newspaper rule, and ordinarily upheld only in the pre-trial stage of a proceeding); and (c) concluded that this practice could form no ground for holding that a lawful excuse existed for the editor's refusal to answer questions as to the identity of his sources of information. 21 By way of conclusion, Lord Wilberforce in Granada said that: To contend that in principle, journalists enjoy immunity from the obligation to disclose which may however be withheld in exceptional cases is, in my opinion, a complete reversal of the rule so strongly affirmed. 22 Viscount Dilhorne in Granada to like effect observed that journalists did not enjoy the privilege of not being compellable to disclose the sources of their information, whether as a witness or in discovery. 23 Granada therefore confirmed the common law principle that there is no journalist privilege to avoid compulsion to reveal the identity of a source by testimony, the production of a document, or otherwise, but also that the identification of a source will not necessarily be required. The requirement to answer a question as a witness or in interrogatories, or to remove a redaction in a discovered or tendered document, may still have to be justified as being relevant and necessary. 24 The High Court in John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; 165 CLR 346 at 354 described the reasoning of the majority in Granada as convincing by reference to the passages described above, holding: It is a fundamental principle of our law, repeatedly affirmed by Australian and English courts, that the media and journalists have no public interest immunity from being required to disclose their sources of information when such disclosure is necessary in the interests of justice: see McGuinness (1940) 63 CLR at pp 102-104; Granada [1981] AC at pp 1169-1170, 1179-1181. The point is that there is a paramount interest in the administration of justice which requires that cases be tried by courts on the relevant and admissible evidence. This paramount public interest yields only to a superior public interest, such as the public interest in the national security. The role of the media in collecting and disseminating information to the public does not give rise to a public interest which can be allowed to prevail over the public interest of a litigant in securing a trial of his action on the basis of the relevant and admissible evidence. No doubt the free flow of information is a vital ingredient in the investigative journalism which is such an important feature of our society. Information is more readily supplied to journalists when they undertake to preserve confidentiality in relation to their sources of information. It stands to reason that the free flow of information would be reinforced, to some extent at least, if the courts were to confer absolute protection on that confidentiality. But this would set such a high value on a free press and on freedom of information as to leave the individual without an effective remedy in respect of defamatory imputations published in the media. (Footnotes embedded) 25 The very privilege denied any existence by the common law, as explained by both Lord Wilberforce and Viscount Dilhorne in Granada, and expressly approved by the High Court in Cojuangco, was brought into existence in Ch 3, Pt 3.10, Div IA (now Div 1C) of the Evidence Act in 2011, subject to a discretionary exception exercisable upon a superior public interest in disclosure being established. Substantially similar provisions were introduced in the versions of the Uniform Evidence Acts in New South Wales, Victoria and the Australian Capital Territory, although the provisions in Victoria are more detailed in relation to the definition of a journalist. Both the statutory privilege, and its exception, were set out in a new s 126H, which was later renumbered to be s 126K. The terms of s 126K did not change, such that authority on the former s 126H applies equally to s 126K. 26 It is first necessary to have regard to the defined terms that appear in s 126J (formerly s 126G). Section 126J provides that in Div 1C: 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. news medium means any medium for the dissemination to the public or a section of the public of news and observations on news. 27 Section 126K (formerly s 126H) provides as follows; deploying the above defined terms "informant" and "journalist": 126K Journalist privilege relating to identity of informant (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. (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. (3) An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit. 28 The enactment of s 126K was necessarily a legislative rejection of the paramountcy at common law of party to litigation having access to the identity of journalists' sources when that is shown to be relevant and necessary to make effective the pursuit of that suit, as found in Cojuangco in the context of interpreting and endorsing Granada. Instead, the regime enacted by s 126K gives paramountcy to the confidentiality of a source by way of the creation of a statutory privilege from compulsory disclosure of a source's identity or of information to enable it to be ascertained, arising from a proven promise to maintain as confidential the identity of a source. If the privilege is established, it can only be displaced at the discretion of a court if the party seeking disclosure establishes a superior public interest in that disclosure taking place sufficient to outweigh both any likely adverse effect on a source or anyone else in the case at hand, and the public interest in the media communicating facts and opinions to the public and in the ability of the media to access sources of facts. 29 The aspects of Cojuangco which treated confidentiality of journalists' sources, acknowledged by the High Court as a vital ingredient in investigative journalism, as falling short of being a source of immunity from disclosure, were therefore substantially departed from by the enactment of s 126K. As the text of s 126K reproduced above at [27] reveals, the key change was creating the journalist privilege from compulsion to disclose the identity of a source that was found not to exist in Cojuangco, subject to proving a promise not to do so and qualified by an exception to the application of that privilege. As noted above at [28], the exception is that of a court being able exercise a discretion to order disclosure when satisfied that the public interest in doing so outweighs both any likely adverse effect of the disclosure on source or any other person and the general public interest in the communication of facts and opinions to the public by the news media, and the ability of the news media to access sources of facts. The bar for the application of the exception is therefore inherently substantial and onerous. Merely being able to run a somewhat better case if the identity of a confidential source is required to be revealed will generally not suffice. The facts and circumstances in a given case may also serve to elevate the public interest in disclosure not taking place. 30 The public interest in communication to the public by the media, and the corollary of access to sources of facts by the media, is not expressed in terms that are specifically concerned with any particular case, although the value and thus weight of that public interest may be illuminated or improved by the particular facts and circumstances before a court. Viewed in that way that may in some cases at least entail, contrary to Cojuangco, and using the High Court's words, "setting such a high value on a free press and on freedom of information as to leave the individual without an effective remedy in respect of defamatory imputations published in the media", unless that individual establishes a greater public interest in disclosure that also outweighs any likely adverse impact on the source or anyone else. The focus of the second part of the exception in s 126K(2)(b) is not on the interest in non-disclosure of the identity of sources in the individual case, but on the public interest at large in media communication to the public of facts and opinions and in media access to information, which is advanced by not disclosing the identity of sources. However the proven interest in non-disclosure in a given case may inform and elevate the public interest in non-disclosure, by giving content to the otherwise assumed impact on being able to publish, and for that purpose to obtain information, if confidentiality of sources is not able to be maintained. 31 It should be noted that the disadvantage of maintaining confidentiality as to the identity of the 13 sources does not just accrue to Dr Al Muderis; it also has the necessary effect of making the evidence able to be relied upon by the respondents more limited and therefore less weighty. In many cases, the evidentiary value for a journalist or publisher of referring to having spoken to a source whose identity is withheld is likely to be confined to little, if any, more than the fact of having taken the step of having that conversation and having in some way acted upon it, such as by following a line of inquiry. The conveying of the content of what such a source told Ms Grieve is likely to be untestable and largely hearsay, the value of which may be slight if it is found to be admissible at all. It is necessary to consider all of the circumstances, if and when the enlivening of the discretion comes to be considered, and if enlivened, the exercise of the discretion falls to be exercised.

The promise of confidentiality needed to give rise to journalist privilege: s 126K(1) 32 In Ashby v Commonwealth of Australia (No. 2) [2012] FCA 766; 203 FCR 440, Rares J made the following observations about the assertion and establishment of journalist privilege (replacing in square brackets, for ease of reading and currency, his Honour's references to the then s 126G with references to s 126J, and replacing references to the then s 126H with references to s 126K): [19] How can the privilege be asserted? First, [s 126J] defines the informant as being the person who gives information to a journalist in the ordinary course of the journalist's work in the expectation that that information may be published in a news medium. Secondly, the section defines the "journalist" as being the person who, in the practice of his or her profession, may be given information by an informant in the expectation that that information may be published in a news medium. Thus, the statutory definitions of "informant" and "journalist" in [s 126J] create a relationship that must exist between the particular information conveyed and the persons between whom it is communicated. The privilege in [s 126K(1)] relates to an anterior promise made by the journalist not to disclose the informant as the journalist's source of that particular information: ie the journalist's promise of confidentiality referred to in [s 126K (1)] is not to disclose the informant's identity, or to enable that identity to be ascertained, in respect of that person as being the source of the particular information. [20] If [s 126K(1)] were construed in the way in which Mr Lewis asserted, journalists would be able to resist producing, or disclosing to a court, any document or information provided by a person to whom they had once promised confidentiality that discloses the identity of the source or enables it to be ascertained, regardless of the connection between the promise and the particular information. This argument would extend the privilege to all instances where the journalist had spoken to, say, a politician on a confidential basis, or "off the record", about a particular subject matter, even though they may talk together on a daily basis "on the record" about other matters. [21] The section is not designed to produce such a result. Its purpose is to ensure that a person who provides particular information can do so knowing that his or her identity as its source can be protected by the journalist because he or she is not compellable to disclose that identity by force of [s 126K(1)]. The privilege exists so that, ordinarily, the journalist cannot be compelled to disclose or identify his or her informant or source of particular information obtained for the purposes of the journalist's work. That privilege is, however, subject to the Court's power created by [s 126K(2)], to override it in certain circumstances. 33 After quoting the second half of the passage of Cojuangco at 354 reproduced above at [24], emphasising the High Court's observation that information "is more readily supplied to journalists when they undertake to preserve confidentiality in relation to their sources of information", Rares J then observed (again aligning the provisions referenced with the current numbering in square brackets): [23] The privilege in [s 126K(1)] changes the emphasis of the balance that the common law achieved in favour of the protection of the sources. But, the new privilege is also intended to protect the free flow of information and the circumstances of its imparting. That privilege was created to meet a well recognised concern for the protection of the confidentiality of journalists' sources of information balanced against the interests of justice in litigation. I am of opinion that it would be unrealistic to construe [s 126K(1)] in a way that gave journalists, in effect, carte blanche to refuse to produce any documents or give evidence that disclosed the identity of a source, or enabled it to be ascertained, merely because the journalist once had had a connection with a person whose identity the journalist had promised not to disclose when imparting particular information. [24] The purpose of the privilege is to protect the confidentiality of the informant as the journalist's source of the particular information the subject of his or her claim under [s 126K(1)]. That is why it is essential to understand that the definitions in [s 126J] tie the privilege conferred by [s 126K(1)] back to the imparting of the particular information given by the informant and to the occasion of that imparting. The privilege exists so that an informant cannot be identified as having provided that particular information or as having been the source of, in the usual situation, the journalist's story containing that information. There is no indication that [s 126K(1)] intended to provide confidentiality for the identity of the informant as the provider of information, where and at a time that the circumstances of its imparting are not, or are no longer, confidential. 34 In Kumova v Davison [2021] FCA 753, Flick J observed at [49]: In resolving this further submission advanced on behalf of Mr Kumova, it has been concluded [by Flick J] that: • the "promise" referred to must be a promise "anterior" to the provision of the information; • the "promise" must be a promise "not to disclose" the identity of a person who can be characterised as an "informant"; • the "promise" referred to must be an express "promise" in respect to the provision of identifiable information as opposed to any promise that may otherwise be inferred, or any promise that could be implied by reference to (for example) the character of the information being disclosed; and • on the evidence, Mr Davison has failed to discharge the onus of making out that any such promise was "anterior" to the provision of information - the evidence making good the proposition that there was a "promise" not to disclose the identity of the "corporate advisor" but, at best, being uncertain as to when that "promise" was first made. 35 The first of Flick J's above conclusions in Kumova as to the need for an anterior promise was expressed as seizing upon the observations of Rares J in Ashby at [19]; the second of those conclusions as to the promise being not to disclose the identity of the source was derived by his Honour from the terms of s 126K(1); and the third of those conclusions as to the promise needing to be express was expressed by his Honour as seizing upon the observations of Rares J in Ashby at [20]. 36 Flick J then observed by way of important qualification or reservation as to the first of those conclusions as to the need for a promise to be anterior to the giving of information, at [51]: Some reservation may nevertheless be expressed [by Flick J] as to any conclusion that there must necessarily be in all cases the extraction of a promise prior to the provision of any information at all. That reservation arises from: • the terms of s 126K(1), the sub-section being silent as to when any promise need be given; • the definition of the term "informant" and the reference in that definition to the "expectation" of the informant; and/or • the facts of a particular case. As to the last consideration, in some cases in the course of a single communication (for example) the very content and subject matter of what is being conveyed may well attract an "expectation" on the part of the person conveying the information and the "journalist" receiving it, that all that is said is being conveyed in the "expectation" that the identity of a person will not be disclosed. It may matter not, in such cases, that the promise not to disclose the person's identity comes mid-way through the exchange of information or even at the very end. A conclusion that the provision of all information has been conveyed pursuant to such a "promise" may well be sufficient to satisfy the terms of s 126K(1). It is, however, unnecessary to resolve the precise point of time during a conversation (or even a series of conversations within a confined timeframe) when a "promise" need be given. In the absence of any necessity to address such circumstances, deference is expressed to the view of Rares J in Ashby. (emphasis added) 37 I share Flick J's reservations about the views expressed in Ashby as to the promise always having to be anterior to the provision of information in the expectation that it may be published, but cannot so easily sidestep them in this case because the issue is squarely raised by the competing positions. 38 Dr Al Muderis interprets Rares J's observations above in Ashby, as endorsed in a qualified way by Flick J in Kumova, as meaning that: A "promise" sufficient to satisfy the condition precedent in s 126K(1) must be: (a) an express promise not to disclose the source's identity, not merely an implicit expectation that his or her identity will not be disclosed; (b) a promise not to disclose the source's identity as the source of the particular information in question; and (c) a promise made anterior to the provision of that particular information. 39 I do not accept that the language in s 126K(1) must be read in such a rigid way. Nor am I convinced that this interpretation is necessarily supported in all circumstances by either Ashby or Kumova, noting in any event that judicial observations about the meaning of legislation in one context in terms of facts circumstances and arguments, may not necessarily reflect the legislative intent when applied to a different context. At all times, the primary task is to have regard to the text, context and subject matter of the legislation in question. 40 Section 126K(1) refers to a promise, not to an express promise. Rares J in Ashby does not use the word "express". Words that change the meaning of a provision should not be read into legislation unless truly necessary. The doubtful implied dichotomy between an express promise and a promise conveyed non-expressly by implication and context, or by other means, as advanced by Dr Al Muderis is something of a diversion or distraction. What matters is that the journalist concerned has given to the source, to the satisfaction of the Court, what amounts in all the circumstances to a promise not to disclose the source's identity, of the kind contemplated by s 126K(1). 41 Context is an important factor in interpreting what has been said and determining whether the threshold for the creation of journalist privilege has been met. Ordinary people do not speak in the language of statutes, although I note that a journalist could make life easier for herself or himself simply by expressly saying to the source something to the effect that they promise not to disclose the source's identity without their permission, and perhaps making a short written, signed and dated note of having done so, using an anonymous reference to the source, to facilitate later proof if required. Putting to one side such counsel of almost perfection, the application of s 126K(1) must focus on of what has taken place substance, not mere form or infelicitous use of language. The question to be asked and answered is whether, in all the circumstances, a promise has been given to a source of news information not to disclose their identity, so as to create journalist privilege. What really matters is what it is accepted was conveyed to the source by way of words and associated conduct in context, as may be deposed to by the journalist. 42 The analysis of s 126K(1) by Rares J in Ashby at [19]-[21] and [23]-[24] reproduced above, which resulted in his Honour limiting the scope of journalist privilege by reference to when a promise is given relative to when information is given, is incomplete. As a result, and for the following reasons, I consider that the conclusion his Honour reached in that regard is, to that limited extent, contrary to the terms of s 126K(1) by which I am bound, such that I will not be following it, even though I do not consider that it makes much, if any, material difference on the evidence in this case considered in considerable detail below. The same may be said of the analysis of Flick J in Kumova [49], although at [51] his Honour gives an indication of a different conclusion being available in different circumstances, with which I agree. 43 Sections 126J(1) and 126K(1) may be seen to be addressing two separate aspects of journalist privilege: (a) The first aspect is the relationship of an informant (source) and journalist as each is defined in s 126J(1), and the source giving to the journalist information in the expectation that it may be published, which is necessary to give rise to the possibility of journalist privilege due to the use of those defined terms in s 126K(1). Being practical, the real content of the expectation is likely to be that part of the information given may be published, as it is unlikely to be verbatim and without any addition or omission. (b) The second aspect is the giving of a promise by the journalist to the informant (source) not to disclose his or her identity, in context as the source of that information, as provided by the first part of s 126K(1), which is necessary to give rise to the existence of journalist privilege under the second part of s 126K(1). 44 The definitions in s 126J(1) thus require a relationship, however new, tentative, embryonic or fleeting, between an active working journalist and a source of information ("informant" as defined) within which the source provides the journalist with information in the expectation that it (or some part of it) may be published. What is thereby conveyed may conveniently be described as news information. It is only the provision of news information within such a relationship and with that expectation, coupled with the promise not to disclose the identity of the source of that information, that is capable of creating the journalist privilege bestowed by s 126K(1). 45 Once s 126K(1) is engaged: (a) by the definitions of journalist and informant (source) in s 126J(1) being met; and (b) by the giving of a promise, by a journalist as defined to a source ("informant" as defined) who has given him or her news information, and been asked not to disclose the source's identity, in accordance with the first part of s 126K, the second part of s 126K(1) both creates the privilege and in doing so, describes its ambit. 46 In this case, there is no suggestion that Ms Grieve was not a journalist as defined, nor that each of the 13 confidential sources was not an informant as defined. It is the giving of the requisite promise by Ms Grieve to any of those 13 sources that is disputed in relation to the operation of s 126K(1) and thereby the creation of journalist privilege for each is disputed. 47 The ambit of journalist privilege, once established, is wide and is qualified only by the terms of the second part of s 126K(1) itself. Neither the journalist nor the journalist's employer can be compelled to give any answer or produce any document that would disclose the identity of the source or enable that identity to be ascertained. Any such answer to a question and any such document may conveniently be described as identifying information. It is important to emphasise that the privilege not to provide identifying information is able to be claimed by both the journalist who was given the news information by the source, and by the employer of that journalist; cf Ashby at [17] referring incompletely only to the journalist being given this statutory right, being the only person asserting the privilege in that case. 48 The relationship and communication giving rise to the provision of news information is what engages the definitions in s 126J(1) so as to make s 126K(1) apply in the first place. But it is only identifying information that is protected from disclosure. A journalist and employer cannot evoke the privilege to resist providing additional news information provided to the journalist by the source going beyond what was actually published, nor resist answering questions about that news information, provided it does not entail disclosing identifying information. The ambit of the privilege is confined to the terms of the second part of s 126K(1). 49 While news information provided to the journalist may (and generally will) include identifying information, the scope of identifying information is neither confined to, nor exhausted by, the scope of that news information. A journalist and journalist's employer may (and perhaps inevitably will) have other sources of identifying information in relation to a source of news information. The privilege denying compulsory disclosure extends to all identifying information held by a journalist and the employer from any source, obtained at any time. The promise upon which s 126K(1) operates is not upon news information but rather upon identifying information, whether or not that identifying information forms any part of the news information provided by the source. 50 It follows that Rares J in Ashby was correct to say that the relationship between the informant (source) and the journalist created by the definition of those two terms in s 126J(1) must be established for s 126K(1) to apply. But that necessary step does not on its own fully address the scope of the privilege created by s 126K(1) once that circumstance is proven to exist. Once a promise has been made not to reveal the informant's identity in the context of the provision of the news information, then the absence of compulsion on the part of the journalist or the journalist's employer applies to any identifying information, irrespective of when or how it was obtained by the journalist or employer. 51 That said, there must be a nexus between the provision of some news information by the source, and the provision of the promise by the journalist, because it is that combination that engages s 126K(1) and thereby enables journalist privilege to come into existence. 52 Adopting the observations by Flick J in Kumova at [51] reproduced above, while it may be accepted that the identity protected is that of a source of particular information, rather than being at large, that does not necessarily mean that the identity of the source will not also be protected in relation to identifying information provided before the promise is given, provided there is a nexus and a reasonable temporal proximity between the two. The terms of s 126K(1) require no more. If news information is given in the course of a conversation in which a promise is given, that is enough and the identity of the source of that information is prima facie protected, subject to the discretion in s 126K(2). This reflects the practical and human reality in which a conversation between a source and a journalist may develop, and during which the source's requirement for confidentiality as to their identity may emerge. This may extend to identifying information obtained preceding the moment of the giving of the promise, including identifying information from another source. 53 Put another way, even if the promise is not given until after the provision of some news information, following which more news information may be given, the privilege is operative from the time it is given as to the journalist not being compelled to provide any identifying information, or potentially identifying information, irrespective of when that identifying information is provided, or by whom, or when. The express shelter given by s 126K(1) is to deny compellability to answer questions or produce documents that would disclose the identity of the source, or enable that source to be ascertained. 54 The assessment of the evidence relied upon by the respondents to establish the existence of the requisite promise, and thereby the existence of the claimed privilege, is carried out below with the above conclusion as to what is required to be established. It should be noted that Dr Al Muderis' argument that a promise of confidentiality must come prior to any news information being given by a source is only expressly advanced with respect to CS#11 and CS#13. For CS#11, the application of the Ashby test would have produced the same result.

Enlivening the discretion to override the privilege: s 126K(2) 55 The step of exercise of the discretion after it has been enlivened may be a small one, depending on the circumstances. Conceivably, there could be disentitling conduct on the part of the applicant seeking the exercise of an enlivened discretion, or some other reason, not to exercise the discretion. In this case, the real issue is whether the discretion has been enlivened by the public interest in disclosure outweighing the public interest in not doing so, and the likely adverse effects of disclosure. The respondents have not suggested, let alone established, any reason for not exercising the discretion if it is enlivened. It follows that the key issue in this case, if and when journalist privilege has been found to exist, is whether the discretion to override it has been enlivened. Dr Al Muderis believes that he knows the identity or likely identity of seven of the 13 confidential sources drawn from the available information in the evidence and inferences that can be drawn. Accordingly, he submits that there is a substantially diminished public interest in denying him being able to confirm that suspicion or belief in relation to those seven sources by dispensing with the absence of compulsion to do so. As noted below, Dr Al Muderis did not advance any case of waiver of journalist privilege, as opposed to an argument that the separate disclosure of information meant that the identify of some confidential sources could be deduced. 56 I am unable to agree that there is, in principle, no significant public interest in such a suspicion or belief not being confirmed by ordering disclosure, upon the assumption in Dr Al Muderis' favour that the suspicion or belief is well-founded in the first place, effectively treating the evidence relied upon by him as establishing a sound or better basis for the belief advanced as to the identity of seven of the confidential sources. As was pointed out by the New South Wales Court of Criminal Appeal in the parallel area of public interest immunity over the disclosure of the identity or status of an informer, the rationale for the privilege is that sources may dry up if confidentiality is not maintained even if the person seeking disclosure already knows the substance of the information they are after: see Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 679-680. The same rationale applies to the public interest identified in s 126K(2)(b). There is a world of difference between the source being identified by other means, and a journalist being compelled to reveal it, including by way of any confirmation of a suspicion or belief to that effect. 57 Even if I am wrong about that, I would not attach any significant or determinative weight to such a suspicion or belief, however well-founded, either in materially elevating the weight of a public interest in favour of disclosure, or in materially diminishing the weight of the public interest against disclosure, especially having regard to the non-case-specific terms of s 126K(2)(b). Subject to any question of waiver of privilege applying, which has not been asserted by Dr Al Muderis so does not arise for determination, s 126K(1) protects a journalist's determination to keep their promise. That is, what really matters is the inherent public interest in encouraging (or not discouraging) the flow of information to the news media, no less than a police officer's determination not to reveal or confirm by their own hand that a person is an informer so as not to discourage future informers. 58 Once it is established that the promise to a source not to disclose their identity is established in accordance with s 126K(1), in the absence of a sufficient basis for the operation of the exception in s 126K(2) being made out, there is no compulsion to recant on the promise, even if the answer to a question about the identity of a source may seem obvious. The journalist's promise remains intact, even if circumstances pose a substantial likelihood or even virtual certainty of the identity being ascertained by other means. 59 I therefore turn to the substantive principles applicable, and the arguments advanced about them, as to the requirements to be met for the exception to s 126K(2) to be made out. 60 Cojuangco has nothing to say directly about the operation of s 126K, either as to the existence of the privilege or it being overridden by a discretionary order to disclose the identity of the source. As John Dixon J pointed out in Madafferi v The Age Company Ltd [2015] VSC 687; 50 VR 492 at [53], in relation to the exercise of the discretion in s 126K(2), "[t]he Cojuangco principle is not the basis for assessing the weight or degree of significance of the public interest in disclosure for the application of the statutory test". 61 That said, as Dr Al Muderis submits, and I accept, the disclosure of evidence of the identity of a source may be a "substantial matter of public interest, and not just of private interest to the individual applicant", depending on the issues in dispute. This is an acknowledgement by Dr Al Muderis that merely his private interest in disclosure will not suffice. He must demonstrate a substantial public interest transcending his individual interest. As I understand his argument, reliant upon the reasoning in Cojuangco at 354 at least by analogy, he asserts that there is an inherent public interest in the interests of justice being advanced by a litigant being able to vindicate rights effectively in litigation. That may be accepted as far as it goes, but it only goes as far as a real impediment that non-disclosure of each disputed source, and collectively as to all disputed sources, to the effective bringing of his case is demonstrated, including in seeking to defeat the defences advanced by the respondents, insofar as that can be characterised as a public interest. The extent of that impediment is then weighed against the considerations in s 126K(2)(a) and (b). 62 As was pointed out by John Dixon J in Madafferi in relation to the balancing exercise required by s 126K(2), in terms with which I generally agree: [47] … The public interest in the disclosure of the informant goes to the fairness of the trial of the issues raised in the proceeding, the interests of justice. The issues of likely adverse effect and public interest in facts and opinions communicated by an informed media have nothing to do with the fairness of the trial process, but a great deal to do with the proper functioning of a free democratic society under the rule of law. The only sense in which one set of considerations can outweigh the other is by a value judgement, which requires the attribution of weight, or degree of significance, to the factors being considered, but not for a calculation. [48] To reject the notion that the confidentiality of journalist's sources deserves absolute protection, the High Court in Cojuangco stated that: The role of the media in collecting and disseminating information to the public does not give rise to a public interest which can be allowed to prevail over the public interest of the litigant in securing a trial of his action on the basis of the relevant and admissible evidence. No doubt the free flow of information is a vital ingredient in the investigative journalism which is such an important feature of our society. Information is more readily supplied to journalists when they undertake to preserve confidentiality in relation to their sources of information. The High Court stated 20 years ago that the appropriate balance would not be struck where such a high value on a press freedom and on freedom of information was set so as to leave an individual without an effective remedy in respect of defamatory imputations published in the media. [49] This analysis brings into focus the concept of an effective remedy. To what degree will the conduct of a fair trial for the benefit of the plaintiff be impaired by maintaining confidentiality of sources? On the other hand, given the obvious public interest in investigative journalism, which the plaintiff accepts, in what degree will detrimental impact on that public interest or likely adverse consequences for the informant or any other person outweigh the conduct of a fair trial? [50] The onus and standard of proof on the parties when advocating for that value judgment to be exercised in their favour are identified by an analogy with the scales of justice. The plaintiff bears the onus to tip the balance of the scales to favour disclosure, which is the required standard. The plaintiff bears the evidentiary onus of placing proof of relevant considerations in one pan, while the defendants seeking to tip the balance in favour of confidentiality by reference to other considerations bear an evidentiary onus to place proof of those other considerations in the opposing pan. The court's value judgment turns on assessing the weight, or degree of significance, of the opposing sets of considerations or values. That exercise may be affected by the extent to which the party that does not bear the evidentiary onus has sought to negate or minimise considerations put against its position. In respect of adverse effects from disclosure, which is a factual question, such consequences must be likely, in the sense of probably or apparently going to happen. [51] Some preliminary observations may be made before turning to analysis of the submissions on the pleadings and the evidence on the application. First, it is not necessary for a fair trial to be had that there be complete, or perfect, disclosure of all relevant and admissible evidence. Secondly, whether a fair trial is being conducted in the court is, quintessentially, an assessment to be made by the trial judge, who is best placed to make that assessment on the basis of the issues that remain to be determined at trial; on the pleadings, in the light of counsel's opening statements, and on examination and cross- examination of witnesses and other relevant circumstances that occur in the course of the trial. 63 Justice John Dixon in Madafferi then considered the terms of the Victorian legislation dealing with the modern conduct of litigation and in particular pre-trial disclosure, which are not dissimilar to Pt VB of the Federal Court of Australia Act 1976 (Cth). His Honour considered the limitations on the residual operation of the newspaper rule in the pre-trial interlocutory phase of a proceeding, which is now of no real relevance given the mid-trial status of this proceeding. His Honour then continued as follows, with which I again generally agree: [54] The legislation contemplates, by its terms, that a court may determine that journalist's privilege not apply in interlocutory or preliminary proceedings. It also contemplates, by s 126K(2), that there can be circumstances in which the disadvantages to the plaintiff in assessing the strength of the defendants' defence may be a price that has to be paid, given the strength of the countervailing public interest [footnote: See Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010 [8], [15]]. The public interest in free flow of information may outweigh other public interests which apply in relation to the production of documents for the purposes of litigation. Each decision will turn on the particular circumstances. … [56] When a qualified privilege (or other) defence makes the identity of the source relevant, there are at least two particular issues relevant to whether the interests of justice require disclosure of the source that may affect, in the context of a balancing exercise, a court's assessment of the degree of interference with the public interest in the administration of justice that is occasioned by nondisclosure. [57] The first issue is how the defendant's reliance on the undisclosed sources makes their identity relevant. It is evident that journalists need to exercise particular care in their use of information from confidential sources in order to avoid waiver of journalist's privilege. The question of whether a plaintiff is unfairly denied an effective remedy by non-disclosure may be raised because of the conduct of the defendant. The extent to which the identity of sources is relevant to the proper administration of justice could depend upon the way information from the confidential source, and the nature and integrity of the source, is used by the defendant in its communication. That was the issue in Cojuangco. … [59] Secondly, the issues raised in the proceeding by the defences taken may make the identity of sources relevant in a way that is inconsistent with the maintenance of the privilege for like reasons. The defence may put in issue the way information from the confidential source, and the nature and integrity of the source, contributed to the reasonableness of publication. Fairness may dictate that the privilege is waived by the issue raised on the pleadings. 64 The public interest that Dr Al Muderis advances is directed to the barriers he faces to success by reason of being limited in challenging the defences advanced by the respondents, especially as to the relatively new public interest defence in s 29A of the Defamation Act, rising to the level of public interest. Unless the impediment is shown to be substantial, it is unlikely to rise higher than a somewhat amorphous and incremental improvement of his prospects of success, falling short of not being able to amount an effective case, and therefore falling short of giving rise to much, if any, public interest at all. That is, it will not be an argument that constitutes a material advance on the now defunct common law test in Cojuangco, in which a general public interest in the administration of justice only yielded to a superior public interest such as public interest immunity, which did not include the public interest in a journalist maintaining the confidentiality of their sources of information. That countervailing public interest in confidentiality as to identity reflected in the privilege being able to be recognised if the terms of s 126K(1) are met, is now recognised as a superior public interest, subject to being overridden by discretion when an even greater public interest in disclosure is made out. Any likely adverse effects of disclosure on a source or anyone else also weigh on the side of non-disclosure. 65 Such a balancing of competing public interests is familiar to courts, such as in weighing the competing public interest reasons for and against allowing illegally obtained "real" rather than confessional evidence to be used in criminal proceedings: see Bunning v Cross [1978] HCA 22; 141 CLR 54, applying R v Ireland [1970] HCA 21; 126 CLR 321 at 335 (Barwick CJ): see in particular Stephen and Aickin JJ in Bunning v Cross at 75; and the terms of s 138 of the Evidence Act. Section 138 altered the common law starting point: (a) from one of prima facie admissibility of relevant evidence obtained illegally, with a discretion to exclude the evidence, as found in Bunning v Cross and R v Ireland, for which the person seeking exclusion bore the onus (ordinarily the defendant or accused); (b) to prima facie inadmissibility under s 138 once illegality was established, but with a discretion to admit the evidence, placing the onus on the party seeking inclusion (ordinarily the prosecutor) to establish that the public interest of inclusion outweighed the public interest in exclusion. 66 Section 138 is also not confined to criminal proceedings, although that is where it usually arises. The onus imposed on a party seeking to rely upon evidence obtained improperly or in contravention of an Australian law (or as a consequence of such conduct) by s 138 is conceptually similar to the position of Dr Al Muderis who must establish that the discretion in s 126K(2) arising from the weighing exercise is enlivened and should be exercised in his favour, if the privilege is established by those asserting it for any given source.

The evidence and circumstances relied upon by the respondents 67 The respondents' evidentiary case largely turns on the evidence of Ms Grieve in two affidavits, including documents she produced. Dr Al Muderis' evidentiary case substantially depends on impugning Ms Grieve's evidence, although he does rely upon other affidavit evidence as well.

Ms Grieve's affidavits 68 Ms Grieve, who was the only witness to be cross-examined, provided two affidavits relied upon by the respondents in relation to this application, the first being one affirmed on 28 July 2023 for the substantive trial before Abraham J, and the second affirmed on 6 November 2023 for the specific purpose of responding to Dr Al Muderis' seeking disclosure of her sources' identities and building upon the first (July Affidavit and November Affidavit, respectively). The November Affidavit contained more detail regarding the conversations Ms Grieve had with each confidential source, particularly in relation to her conversations with them, about confidentiality, the information provided by each confidential source, their willingness to provide confidentiality and the corroborating sources she relied on in relation to the information provided by those sources. 69 Dr Al Muderis submits that it is "unbelievable" that Ms Grieve would have a better recollection of promises to sources in November 2023 than in her notes or July affidavit. This sort of submission contains an oft-repeated proposition which has apparent logic, but in some circumstances can bear little resemblance to reality. Witnesses do not always record things accurately at the time of an event, not least because the significance of something may not have been appreciated at the time, or because of some misunderstanding at the time something has been said, or even because it is not thought necessary to record something at the time, including because of a belief that it is better not to do so. These comments reflect the human experience, without the benefit of hindsight so often a feature of litigation. Correspondingly, something that has not been written down may be more memorable than something that has been recorded, because of its indispensability to the overall event or circumstances. 70 In the circumstances of this case, I do not accept that Ms Grieve had a poorer recollection of something of such fundamental importance to a journalist, especially an investigative journalist, as whether a source is willing to be named and openly used. I accept that such information would be able to be very briefly communicated and understood, and probably more so than unfamiliar and perhaps unexpected information necessarily recorded on the run. 71 The respondents submit that the two affidavits are explained by the July Affidavit having been prepared for the trial in the substantive proceeding. I accept that the November Affidavit was prepared for the purpose of the present dispute and is tailored to that purpose, and that this explains why there is detail regarding the giving of a promise not to disclose the identity of each confidential source that does not appear in the July Affidavit and the addition of further information obtained from the sources since the July Affidavit. Dr Al Muderis submits that the November Affidavit is problematic and dangerous, including from a credit and reliability perspective, as it was prepared after the proceeding had commenced, includes evidence of Ms Grieve's conversations with confidential sources confirming the promise in retrospect, and was informed by Dr Al Muderis' submissions. Dr Al Muderis submits that the primary evidence is the contemporaneous documents, being the notes, text messages and emails. 72 I do not accept that there is anything inherently problematic or dangerous about the November Affidavit, although of course a more contemporaneous record of what took place would probably have been better. Nor do I accept the implicit suggestion that the November Affidavit in some way reflects poorly upon Ms Grieve, or her credit or reliability, or adversely upon the respondents more generally. It is apparent that, perhaps naively, it was not contemplated that the privilege claim would be contested. But whether that is so or not, once the claim was contested, and particular assertions were made about that claim including as to the inadequacy of the foundation for the claim contained in the July Affidavit, it was reasonable for the respondents to endeavour to address this. This sort of thing is routine in ordinary civil litigation, and especially in interlocutory disputes. It may or may not have a bearing on the reliability or weight of the evidence thereby advanced. In this case, I am not satisfied that it has been shown to be any cause for concern, let alone bears the dire consequences that Dr Al Muderis suggests.

Ms Grieve as a witness 73 Disputed credit and credibility findings are required for Ms Grieve as the only witness to give oral evidence in the hearing. It follows that Abraham J was prescient to have this interlocutory dispute heard separately by another judge. As already noted, and as appears to be common ground, Ms Grieve was the key journalist involved in the investigation into Dr Al Muderis that led to the publications sued upon. 74 The parties present starkly contrasting submissions as to how Ms Grieve's affidavit evidence and cross-examination in this separate interlocutory proceeding should be regarded. Dr Al Muderis submits in revised written submissions furnished after Ms Grieve had concluded her evidence that he does not accept her evidence and that even taken at its highest that evidence does not establish the factual basis for the existence of the journalist privilege created by s 126K(1) of the Evidence Act. His position is that Ms Grieve is not a witness of credit, and went close to asserting that she had given false evidence, while also submitting that he did not need to go that far. Aspects of her testimony are characterised by him as unbelievable, making no sense, internally inconsistent in parts, bizarre and other colourful descriptors. Many of those labels were little more than pejorative assertions, appealing to a partisan characterisation of the circumstances of events. Dr Al Muderis also submitted that none of Ms Grieve's evidence in chief should be accepted unless it was corroborated by contemporaneous documentary evidence or was against interest. That stance requires at the very least a conclusion as to such a high degree of unreliability that nothing at all of what Ms Grieve said can be taken at face value, irrespective of its independent probative force. 75 The respondents characterise Dr Al Muderis' stance as being entirely without merit, describing Ms Grieve as an honest and forthright witness across some five hours of cross-examination. The contrast could not be more stark in the opposing positions. 76 I read Ms Grieve's two affidavits prior to her cross-examination with some care, albeit that time did not permit much contemplation, and did so again more closely as her cross-examination progressed and after it had concluded. I watched and listened to her giving evidence, observing not just what she said, but how she said it, having regard to the logic and sequence of the events. The ultimate assessment of credit is often not safely done by demeanour alone: see Fox v Percy [2003] HCA 22; 214 CLR 118 at [30]-[31]. That said, there was nothing about the way that Ms Grieve gave evidence that caused me concern about her honesty or, to any significant extent, her reliability. But the greater focus is on content, context and logic. Dr Al Muderis' pejorative characterisations were overblown, especially when logic and reason are applied, not just appearance. 77 I consider Ms Grieve to be shown, not just by what she said and how she said it, but by the description of what she did and the application of logic, reason and context, to be an earnest, intelligent and conscientious person, relatively new to investigative journalism, but anxiously doing her best, both as a journalist and as a witness. I formed the strong impression of her doing her best to tell the truth, extending to the whole truth to the extent that maintenance of the claim of journalist privilege permitted it, and that her evidence was not inherently incredible, implausible or unreliable. She is undoubtedly worried about being forced to disclose the identity of sources whom she genuinely regards as requiring her not to do so. Her evidence was not flawless; but in my experience few witnesses are flawless when giving evidence of detail and complexity, especially when recalling dealings with numerous other people. She struck me as somewhat taken aback by the process and by the vigour of the cross-examination, but not as being overwhelmed by it. Overall, I consider she withstood the cross-examination well; indeed better than many seasoned witnesses I have observed over many years. 78 Ms Grieve's affidavit evidence was affected in part by the cross-examination, largely by way of qualification or reservation as to aspects of this, but was not significantly impeached. She made many appropriate concessions and did not argue with counsel, but rather politely disagreed or otherwise held her ground. That was so despite numerous questions being asked to which objection properly could have successfully been taken, but was not. She was largely left to fend for herself in what was obviously a very unfamiliar situation. Ms Grieve coped well with all of this, never once showing anger or irritation, but rather concern to do her best to answer, without failing to protect the identity of the confidential sources. If anything, she was unduly apologetic about some of the answers she clearly felt she had to give. Most of the weaknesses in her evidence were there to be seen independently of cross-examination and this was not substantially affected by what was put to her. She was at times rattled, rather than shaken. I am amply satisfied that Ms Grieve was a credible and generally reliable witness of truth whose testimony can, with minor qualifications, be safely accepted and relied upon. 79 It follows that I reject Dr Al Muderis' submission that Ms Grieve was not someone whose evidence could be accepted without documentary corroboration or being evidence against her interest. I generally accept as honest and reliable the account that she gives in her affidavits and in cross-examination of her dealing with the various sources she spoke to. I accept that aspects of what was omitted in her July Affidavit on the topic of giving what she contends was a promise not to disclose a source's identity, as deposed to in her November Affidavit, was due to oversight, rather than it not having happened at all. It follows that that the narrative of Ms Grieve's evidence below proceeds upon the basis of acceptance of most of what she says. 80 This mostly leaves for determination what should be made of the evidence that Ms Grieve gives in chief by affidavit and the challenge to it made by cross-examination, having regard to the competing submissions. The first aspect turns on the onus cast upon a journalist, and thus upon Ms Grieve and the respondents, of establishing that the promise required by s 126K(1) was made, in respect of each of the 13 sources asserted to be confidential. If, and only if, that is established, Dr Al Muderis then bears the onus of establishing that the public interest in the disclosure of the identity of such a source (s 126K(1); promise) outweighs the likely adverse effect of that disclosure on that source or on any other person (s 126K(2)(a); likely adverse effect) and the public interest in the communication of facts and opinions to the public by news media, including the ability to access sources of facts (s 126K(2)(b); public interest in non-disclosure). But each side bears an evidentiary onus, Dr Al Muderis as to the chapeau to s 126K(2) and the respondents as to s 126K(2)(a) and (b). 81 The promise issue is evaluative rather than discretionary; either the promise is established or it is not, in respect of each of the 13 individual asserted confidential sources. The likely adverse effect issue has a wide ambit and is not confined to the actual likelihood of an adverse event taking place, but may extend to a fear of such an event taking place: see Madafferi at [118]. The public interest in non-disclosure issue is, in express terms, directed to the broad public interest in the communication of facts and opinions to the public by the news media, and thus in the ability of the news media to access sources of facts, which may be informed by the facts and circumstances of the instant case, but is not confined to what has happened in that case. 82 The issue of whether the public interest in disclosure outweighs both the likely adverse effect and the public interest in non-disclosure is based on an evaluation of the competing considerations and their weight, so is not at large. The existence and degree of such adverse effects and public interest in communication to the public, including the ability to access sources, as particular to this case, is mostly in the evidence adduced by the respondents, although a number of documents were also tendered and admitted into evidence in the course of the cross-examination of Ms Grieve. 83 While Dr Al Muderis bears the overall burden of establishing that the public interest in disclosure of the identity of a source found to be the subject of journalist privilege outweighs the combined effect of any likely adverse effect of that disclosure on that source or on any other person and the public interest in the communication of facts and opinions to the public by news media, including the ability to access sources of facts, as already noted, the evidentiary burden to which that balancing evaluation applies falls on the side that stands to benefit from it. That is, Dr Al Muderis bears an evidentiary burden in establishing the facts and circumstances favouring disclosure, while the respondents bear an evidentiary burden in establishing the facts and circumstances favouring non-disclosure: see Madafferi at [50]. 84 It is convenient to consider for each asserted confidential source individually the existence or otherwise of the promise, and, following that determination, either as the next step, or in the alternative even if the promise is not established upon the assumption that conclusion is wrong, the cumulative issues of likely adverse effect and public interest in non-disclosure. 85 Much of the evidence and arguments advanced by Dr Al Muderis are directed to attacking the respondents' case on both the promise for the purposes of s 126K(1) and the factors in s 126K(2)(a) and (b) against the discretion in s 126K(2).

General aspects of Ms Grieve's evidence 86 Ms Grieve accepted in cross-examination that there are multiple phrases that journalists might use when discussing arrangements on how information will be used with sources, and stated that what those terms mean is often context dependent. Ms Grieve also agreed in cross-examination that there is a distinction between a source's name not being used in an article and their name being secret. References to secrecy may therefore be important in conveying that the identity of a source is not to be disclosed. 87 In cross-examination Ms Grieve said that as very few people were prepared to go on the record in the investigation into Dr Al Muderis, she relied on her memory a lot and did not need to record individual promises. She later said in cross-examination that in her initial conversations with sources she was doing research, and did not know at that stage if there was a story and did not know that Dr Al Muderis was perceived to be litigious. 88 Ms Grieve spoke about her general process for taking notes when a source has asked for confidentiality or a discussion is taking place about whether a conversation will be on or off the record. Ms Grieve stated that generally she will not take notes during that part of the conversation because people could hear her typing (being the means by which she generally took notes) and get quite edgy, and so once that component of the conversation is done she will ask if it is okay that she starts taking notes. Ms Grieve said that this was her usual practice with all of the confidential sources. Dr Al Muderis submits that I should reject that explanation. I do not agree. This approach is logical and has an inherent ring of truth to it and I accept Ms Grieve's evidence on this point. 89 In cross-examination it was suggested to Ms Grieve that for nearly every source mentioned in her affidavits, her evidence is not a faithful record of even the notes she has produced of conversations with sources and that, in preparation of her affidavits, she has gone out of her way to twist what she has been told to be as negative about Dr Al Muderis as possible. Ms Grieve disagreed with this assertion. I do not accept that is a fair characterisation, so accept her stance. 90 In cross-examination Ms Grieve spoke about the approach she took generally to her recent conversations with confidential sources regarding their confidential status and the potential for them to be named in the proceeding. Ms Grieve said that she would tell the confidential source she was in a situation where there had been an application to reveal the identity of her sources, that she had to detail the conversations that she had had with them in her July Affidavit, and so she was wanting to include them in that list of confidential sources and wanted to get an understanding of their memory of the terms of their conversation. Afterwards she would ask if the source would release her from the confidentiality obligation and if they said no she would ask why and ask them to describe any adverse consequences they would suffer. Ms Grieve stated that this was a clarification, as it was clear to her what the terms of the original conversations were and that she had made a promise of confidentiality but that she only formally recorded them as a confidential source after she went back and asked them to relieve her of the confidentiality obligation. The 13 sources the subject of this dispute did not do so, and she then went back to them again after the application for disclosure by Dr Al Muderis was made. Ms Grieve agreed in cross-examination that she did not record the conversations in which she first asked the confidential sources to release her from confidentiality obligations. 91 In cross-examination, Ms Grieve said that in her initial conversations with the confidential sources outlined in her July Affidavit, at the end of most of her conversations she would ask if there was anyone else that source could recommend that she speak to as she was trying to speak to as many people as possible. 92 Dr Al Muderis submits that the large number of confidential sources relied upon, in this case 23, is a significant factor in favour of disclosure, although he only ultimately makes the application in relation to only 13 of these (in part because several have revealed their identity or agreed to that taking place, and also in part because he does not press for the disclosure of the identities of former patients). He submits that the motives, integrity and reliability of these sources can therefore not be fairly tested. That such a large number of sources told Ms Grieve that they held concerns about Dr Al Muderis' practice, that nothing had been done in the past about him, and that they feared adverse consequences if they provided Ms Grieve with information, and were identified to have done so, may speak to the general perception of Dr Al Muderis as someone who people were not prepared to talk about without assurance of confidentiality. I therefore do not accept that the number of confidential sources alone necessarily elevates the case for the disclosure of their identity and in fact may indicate importance of non-disclosure to the investigation and the public interest it may be seen to advance. Also, Dr Al Muderis' stance does not pay sufficient heed to the terms and purposes of s 126K; and does not, as required, focus on the impact of non-disclosure in terms of the public interest in that being maintained. Ultimately, what really matters on the disclosure side of the equation is the overall significance of the non-disclosure on the conduct of Dr Al Muderis' case, not merely as a matter of incremental improvement, but as to overall effectiveness or a fair trial. 93 In relation to CS#1, #2, #4 and #6, Dr Al Muderis criticises Ms Grieve's refusal to confirm that the identity of those sources were the ones he named as being "obviously" those confidential sources. He submits that Ms Grieve's refusal to concede these and other points, including where CS#7 worked and that third parties knew the Ms Grieve was speaking to CS#1 as a source, were "self-serving". I do not accept this characterisation, and instead find that most of Ms Grieve's answers in cross-examination in relation to this line of questioning, which was seeking to have Ms Grieve accept Dr Al Muderis' theories about the identity of a confidential source or what a reference in correspondence might mean, were "privilege-serving", rather than "self-serving". 94 In relation to a number of the sources, Dr Al Muderis made submissions regarding issues that may exist with Ms Grieve's reliance on the confidential sources if their identities are those that Dr Al Muderis suspects they are. These include whether certain sources are doctors, whether they have conflicts of interest, and the nature of their expertise, but the detriment occasioned by this was cast in vague and general terms, rather than being anchored in the likely relevant issues at trial. It is therefore difficult to give any evaluative weight to this submission. Further, this submission has a "bootstraps" feel to it. Dr Al Muderis cannot test these things because he does not have confirmation of the identity of the confidential sources, but nor did he make any compelling argument that any particular source must be revealed only upon the basis of his suspicions. This is addressed in greater detail later in these reasons. 95 Dr Al Muderis submits generally that from a credit perspective, Ms Grieve's affidavit is problematic, as some of her evidence goes to conversations she had with confidential sources after the defamation proceedings had commenced. Dr Al Muderis submits that, having read about the proceedings, sources would in retrospect in recent conversations with Ms Grieve assert that they had never intended their name to be revealed at all, and so that evidence is dangerous as it is obtained after the fact. That submission is premised on the speculative conclusion that there was no genuine conversation in the first place. I do not read Ms Grieve's November Affidavit in that way, nor her evidence in cross-examination in a way that assists with this submission. Rather, in the absence of any compelling reason not to assess this evidence on its own terms, subject to any meaningful challenge to it in cross-examination, that is the only appropriate course to take. I accept her evidence that these follow up conversations were both to check and confirm what had taken place in the course of the prior communications, especially on the issue of confidentiality as to identity, and also to seek to have each source forego confidentiality (which was apparently successful for some) or identify the concerns held if that was not maintained. 96 Dr Al Muderis submits that the primary evidence should be regarded as Ms Grieve's notes as they are contemporaneous, and the rest treated with caution as there is an issue with reliability, the November Affidavit being both further in time away from the conversations referred to and being drafted for the purposes of addressing Dr Al Muderis's submissions. I have accepted that submission as guidance in assessing Ms Grieve's evidence, but have not been satisfied that there is any sound basis for a concern as to reliability, as found in the preceding section above. 97 I now turn to my assessment of each of the 13 confidential sources as to proof of the promise not to disclose their identity so as to satisfy s 126K(1).

The giving of the promise to confidential sources - s 126K(1) 98 It should be noted that, consistent with Ms Grieve's affidavit evidence asserting journalist privilege in relation to each confidential source, all the respondents in this matter likewise assert this privilege.

Promise to CS#1 99 On 9 June 2022, Ms Grieve looked up a Sydney-based orthopaedic surgeon on Google, CS#1. Ms Grieve had not heard of CS#1 prior to beginning her investigation. She telephoned his rooms, and subsequently sent an email asking to speak to CS#1 regarding osseointegration surgery. That email shows that Ms Grieve told CS#1's offices that she was "happy to speak with [CS#1] on or off the record". In Ms Grieve's affidavit evidence, she stated that "this meant I was offering to speak on the basis that anything he said to me was strictly off the record which meant that I would not disclose his identity as the source of the information provided and that I would not use information in a way which could reveal him as the source". 100 Dr Al Muderis submits that Ms Grieve's November Affidavit makes no sense, as Ms Grieve does not disclose how she came to find CS#1 other than that she did a Google search, and the fact that she came across a person who had treated one of Dr Al Muderis' osseointegration patients is unusual and something he would wish to test at trial. I do not agree that this makes no sense; and I find the asserted wish to test this at trial of little assistance to the substantive issues in the proceeding that I must give primary attention to. 101 On 9 June 2022, CS#1 replied to Ms Grieve's initiating email stating that he was "happy to talk off the record about the technical aspects of osseointegration". On the same day, he called Ms Grieve. Under cross-examination Ms Grieve stated that CS#1 brought up Dr Al Muderis, asking her why she was contacting him if she wanted to know about osseointegration as Dr Al Muderis is the most well-known for that surgery. Ms Grieve in her July Affidavit recalls that CS#1 insisted that their conversations be off the record and confidential, and that he was content to speak with Ms Grieve on that basis alone as he was very nervous about his name coming out. CS#1 said that a friend had been burnt by the media in the past and he was very nervous about speaking about Dr Al Muderis and did not want his name near anything. In oral submissions, Dr Al Muderis submitted that this is not reflected in Ms Grieve's notes and that it makes no sense that Ms Grieve and CS#1 would email regarding speaking about the technical aspects of osseointegration and then immediately begin speaking about Dr Al Muderis, so that evidence should not be accepted and, to the extent it is accepted, the agreement is that CS#1 be only "off the record" and not a secret source. 102 Ms Grieve agreed in cross-examination that there is nothing in her notes which suggests that the off the record discussion would mean that Ms Grieve would never divulge CS#1's identity at any point, but disagreed that her affidavit had nothing that would suggest that she had conveyed this, stating that she would only disclose a confidential source with their permission; denying also that she had told other doctors that she had spoken to him. 103 It was put to Ms Grieve in cross-examination that the conversation with CS#1 as recounted was "unnatural", "didn't make sense at all", and it is more likely that she brought up with CS#1 that she was seeking negative information about Dr Al Muderis. Ms Grieve responded that while she did not recall the specific construction of the conversation, she maintained that early in the conversation CS#1 inquired about why she was calling him and then asked for confidentiality. Ms Grieve maintained under cross-examination that while it did strike her as unusual that a source would immediately express concerns about confidentiality at the start of a conversation, she maintained that her sources brought up Dr Al Muderis due to his link to osseointegration. In her cross-examination, it was suggested to Ms Grieve that she was dishonest in a number of ways, including by saying that, at that stage, she was just investigating osseointegration, and in suggesting that her sources brought up Dr Al Muderis independently, rather than Ms Grieve doing so. Ms Grieve rejected assertions that she was dishonest in her characterisation of her research when contacting the sources, stating that as she was merely at the investigation stage and did not yet know if there was a story, or what it would be at that stage. She said she did not bring up Dr Al Muderis herself and was rather having more general conversations, and if the source brought up Dr Al Muderis she would then talk about that. I accept Ms Grieve's evidence and reject the characterisation of her evidence as dishonest. I also accept Ms Grieve's account of her initial conversation with CS#1, and accept her evidence that CS#1 brought up Dr Al Muderis himself early in the conversation when querying why Ms Grieve would contact him to discuss osseointegration rather than Dr Al Muderis. 104 In her November Affidavit, Ms Grieve clarified that CS#1 had insisted that the whole discussion be off the record. Ms Grieve said she had responded to this request with "yes, of course". It was put to Ms Grieve in cross-examination that she had no written record of the words spoken, as quoted in her November Affidavit. Ms Grieve agreed. She stated that she tended not to take notes when discussing confidentiality as people can hear typing and get quite edgy, so it is only later that she asks if it is alright if she starts taking notes, though she did not suggest that specifically occurred in the case of CS#1. It was put to Ms Grieve in cross-examination that she immediately agreed to CS#1's request, without thinking about whether she should agree to that request or not, which Ms Grieve confirmed, stating that the initial conversation took place in the research rather than publishing phase. At the time of the telephone call Ms Grieve was not interested in naming CS#1 in a story, with her focus instead being on speaking to as many people as possible. Ms Grieve spoke to CS#1 approximately 10 to 15 times for a total of five to 10 hours, but has no physical records of those subsequent conversations. Each conversation with CS#1 commenced with CS#1 saying "this is off the record" and Ms Grieve responding "yes, of course". While Ms Grieve admits that she does not have an independent memory of each and every one of CS#1's requests for anonymity because they were extensive, and she did not record these in her notes, she said CS#1's concerns were so elevated that it was easy to recall the confidentiality promise. I accept this evidence. 105 Ms Grieve, in her November Affidavit, recounts that she took steps to maintain confidentiality regarding CS#1, as it was her understanding that her promise to CS#1 meant she would never be able to divulge his identity in publications or otherwise. If asked, Ms Grieve told other surgeons who inquired as to whether she had spoken to CS#1 that she could neither confirm nor deny that. 106 In cross-examination it was suggested to Ms Grieve that offering to speak to a source off the record is not consistent with the Nine Publishing Editorial Guide or the Media Entertainment and Arts Alliance code of ethics, with which Ms Grieve disagreed. Ms Grieve stated in her July Affidavit that she explained to CS#1 that she was happy to agree that he be treated as a confidential source and their conversations would be off the record, and under cross-examination stated that this promise occurred in the first thirty seconds of the telephone conversation, around the time CS#1 had brought up Dr Al Muderis. I accept Ms Grieve's evidence that CS#1 asked for confidentiality very early in the conversation. CS#1 also expressed concerns about Dr Al Muderis' practice, and his perception that previous stories about Dr Al Muderis did not gain traction due to his litigious nature. In this context, it is not implausible that upon mentioning Dr Al Muderis himself, CS#1 saw both an opportunity to speak to a journalist about Dr Al Muderis and a need to ensure his identity would remain confidential if he spoke about Dr Al Muderis. 107 Dr Al Muderis submits that Ms Grieve's recollection of her first conversation with CS#1 is "inherently implausible", and that it is difficult to see why CS#1 would insist on talking off the record if he thought they were only going to be discussing the technical aspects of osseointegration, as foreshadowed in Ms Grieve's pre-telephone call email to CS#1. The problem with Dr Al Muderis' submissions is that they have no regard to the contemporaneous documentary evidence that is consistent with this position. CS#1's insistence that this be off the record when only contemplating talking generally about the technical aspects of osseointegration is recorded by CS#1's email to Ms Grieve's prior to their first telephone conversation. A submission that something is inherently implausible is difficult to comprehend, let alone accept, when it is abundantly clear that this is precisely what happened. It follows that I reject Dr Al Muderis' further submission that the Court could not be satisfied that the conversation occurred in the way deposed to by Ms Grieve, and the related submission that Ms Grieve's insistence that she did not mention Dr Al Muderis at the outset of the conversations with the sources makes her evidence about each of the conversations with the confidential sources "fantastical on any view and, to put it more mildly, illogical bordering on absurd". To be blunt, that characterisation better applies to the submission than to the evidence. 108 Ms Grieve spoke to CS#1 again on 23 October 2023 and asked him to confirm his understanding of the nature of her promise to him. In cross-examination, Ms Grieve agreed with the proposition that she opened by telling CS#1 that she needed information to help keep his identity confidential, and that she asked CS#1 to set out possible consequences he could think of if he were named. Ms Grieve says CS#1 told her that she could not use his name in any way in connection with the information he provided to her or in connection with her investigation or publications. Ms Grieve asked CS#1 if he would release her from her source obligations in relation to him. CS#1 said that he would not release her, that he wanted to retain confidentiality, and would not have spoken to her without the promise of confidentiality. Ms Grieve confirmed that she would maintain her confidential source obligations to CS#1. I accept this evidence, and reject Dr Al Muderis' submission to the contrary. 109 Dr Al Muderis submits that on Ms Grieve's evidence, CS#1 contacted patients to obtain patient consent to provide medical records to Ms Grieve, and this means that the patients in question must have known that their doctor was in contact with Ms Grieve and giving her information. Dr Al Muderis submits that Ms Grieve's refusal to concede that patients of CS#1 who spoke to Ms Grieve must have known CS#1's identity as a source is "denying the obvious". It is abundantly clear to me that these refusals were given by Ms Grieve due to her desire not to engage in conjecture regarding conversations she was not party to, and her desire to maintain her claim of journalist privilege. Dr Al Muderis makes this submission in relation to a number of the sources, and produces a script of how those conversations between confidential sources and patients "must have" supposedly gone, which include the confidential source telling the patient that they have been contacted by Ms Grieve who is a journalist. Dr Al Muderis submits that in those circumstances it is difficult to see how the identity of the confidential source could be confidential from "first principles" (apparently referring to the concept of confidentiality at general law), as the fact that the source was in contact with Ms Grieve and was providing her with information was known to a third party over whom neither Ms Grieve nor the confidential source had any control. Dr Al Muderis submits that there was nothing to stop the third party telling their friends or family that there was a media investigation into Dr Al Muderis and that the source was assisting with it. I do not accept that confidentiality as to identity of a source in the context of an expectation of publication of information is necessarily impugned because of other people knowing about the contact being made, nor that it is impugned in this case. General principles of confidentiality as advanced by Dr Al Muderis' submissions are of no assistance to the present inquiry. This argument fails to pay heed to the terms of s 126K(1), which refer to a promise flowing from a journalist to a source, not any other communication that has taken place, or might take place in the future. 110 The respondents in their written submissions state that Dr Al Muderis made two submissions in relation to the promise given to CS#1: that the conversation as recalled in Ms Grieve's affidavit is not reflected by Ms Grieve's notes, and that the first emails between Ms Grieve and CS#1 suggest only the part of the discussion relating to the technical aspects of osseointegration would be off the record. That second submission was generally made by Dr Al Muderis in regard to Ms Grieve's evidence, though was no longer so strongly pressed in regards to CS#1 in Dr Al Muderis' amended written submissions. As previously concluded, Ms Grieve came across as a reliable and earnest witness, and I accept her affidavit and oral evidence without the need for corroboration from contemporaneous documentary evidence. The respondents submit that Ms Grieve's evidence is that she took notes of only information provided by a source as that was relevant to making further enquiries and publication. The email in which CS#1 agrees to speak to Ms Grieve about the technical aspects of osseointegration off the record occurred prior to the initial telephone call and so the respondent submits it cannot be inferred from that email that the only part of the subsequent telephone conversation that was off the record was the part concerning technical aspects of osseointegration as that is unrealistic and makes no sense. The respondents submit that, instead, the email corroborates Ms Grieve's evidence that when she and CS#1 spoke by telephone, CS#1 insisted that their discussion be off the record. I generally accept these submissions. 111 After weighing the totality of the evidence as to Ms Grieve's communications with CS#1, and the competing submissions, I accept Ms Grieve's evidence that CS#1 raised confidentiality early in the conversation, and that she gave him an assurance in that regard which was in substance a promise not to disclose his identity. That is, I find that Ms Grieve gave a promise to CS#1 in the nature of that contemplated by s 126K(1).

Promise to CS#2 112 On about 9 June 2022, Ms Grieve contacted a plastic surgeon, being CS#2, whom she became aware of as he had given a medico-legal opinion in a case involving Dr Al Muderis. She conducted an internet search in order to contact CS#2. She contacted CS#2 via LinkedIn, though there is no documentary evidence of these LinkedIn messages. Ms Grieve stated in affidavit evidence that this is due to her LinkedIn paid subscription lapsing, the messages being deleted at the point of lapsing, and that messages prior to 25 November 2022 being unrecoverable on the resumption of that paid subscription. Ms Grieve confirmed in cross-examination that she has not asked CS#2 for these messages. Dr Al Muderis submits that the fact that Ms Grieve has lost those LinkedIn messages is relevant as, if the identity of CS#2 were revealed, he could seek the messages from the source himself. In cross-examination, Ms Grieve agreed that her initial approach to CS#2 would have been similar to how she approached CS#1, as at that stage they were "all pretty broad requests to speak". 113 On about 9 June 2022, CS#2 telephoned Ms Grieve from a private number. Ms Grieve recorded that conversation, and then transcribed the conversation into written notes from that recording before deleting it. Those notes do not record that CS#2 sought assurances that the conversation would be confidential and off the record, which Ms Grieve said it would be, as recalled in her July Affidavit. CS#2 informed Ms Grieve that he did not want to be named in any publication or quoted in any way, to which Ms Grieve said words to the effect of "yes, that's fine". Ms Grieve in cross-examination stated that she agreed immediately to the request for confidentiality as this was in the research, rather than publishing, phase. Ms Grieve stated under cross-examination that she has no written record of the promise of confidentiality recounted in her July Affidavit, as she did not see that as something relevant to transcribe. She rejected the proposition that the reason the promise was not recorded in her transcription is because it did not occur. Ms Grieve's evidence is that she considered that it was not necessary to record promises of confidentiality as at that stage all conversations were being treated as off the record, and so her notes of conversations are not comprehensive records and on occasions no notes at all were taken as Ms Grieve could rely on her memory. 114 Ms Grieve told CS#2 that his name would never appear in any possible future story. Ms Grieve maintains that this meant she had given a promise that she would never be able to use CS#2's name in any publications and would not divulge his identity at any point. CS#2 refused to give Ms Grieve his mobile number as he wanted to remain as anonymous as possible. It was suggested to her in cross-examination that this was irrelevant as she already had his office number, which she said was not the case. Ms Grieve deposes to taking CS#2's concerns seriously and made sure to protect his identity in her research and in the publications. 115 Ms Grieve spoke to CS#2 again on 23 October 2023. CS#2 said to her "you very clearly said to me that my name would not be released" and "I would remain confidential", and that he had only spoken to Ms Grieve because of the confidentiality agreement. Ms Grieve asked CS#2 if he would release her from her confidential source obligations, and CS#2 said he would not release her. Ms Grieve confirmed she would retain those confidential source obligations. 116 Dr Al Muderis submits that Ms Grieve refusing to concede that CS#2 was obviously a doctor they had identified was "denying the obvious". Dr Al Muderis further submits that CS#2 knew that Ms Grieve was speaking to CS#1. Dr Al Muderis submits that this, along with other instances, shows that third parties knew that a particular source had spoken to Ms Grieve, and in those circumstances it is difficult to see how the identity of the confidential source could be confidential from first principles. I have dealt with that characterisation at [109] above but again find here that Ms Grieve was merely adhering to journalist privilege in providing this answer in cross-examination, rather than denying the obvious. 117 Ms Grieve disclosed to Dr Al Muderis' lawyers on 9 November 2023, the day prior to the commencement of the present interlocutory hearing, that she had recorded her conversation of 9 June 2022 with CS#2, but had forgotten about that recording, and did not provide that recording in discovery because she had deleted the recording immediately after transcribing it. Dr Al Muderis submits that Ms Grieve's claims about her note-taking were contradicted by some of the notes themselves, and refers to her evidence about the audio recording of her conversation with CS#2. Dr Al Muderis highlights that Ms Grieve did not disclose those notes in her evidence or in discovery until the night before the interlocutory hearing. He also points out that the transcription of those notes do not refer to the request for confidentiality. As already noted, Ms Grieve has stated that she deleted the recording as it was no longer necessary once she had made a transcription of the conversation, that she was being careful about confidentiality, that this was not a complete transcription, and hence does not contain reference to the promise. Dr Al Muderis characterises Ms Grieve's answers regarding the lack of reference to confidentiality in her notes as "nonsensical" as "it could hardly be said that the recording was no longer necessary if the transcript was not a complete transcript of everything on the recording". 118 During cross-examination regarding the notes of her conversation with CS#2 not including reference to confidentiality, Ms Grieve stated that she would not make notes of promises because sources would become nervous if she was taking notes. Dr Al Muderis characterised this answer as "even more nonsensical" as the notes were made from a recording. I took this to be a reference to her general practice, rather than an explanation in relation to this specific source as the written notes were transcribed after the conversation rather than made during it. Indeed, Ms Grieve continued in cross-examination that it was not relevant for her notetaking purposes, and the notes were for the purpose of the information CS#2 told her, not the nature of the promise which she did not see a something relevant to transcribe. 119 Dr Al Muderis submits that Ms Grieve's evidence regarding why there is no reference to confidentiality in her notes of the conversation with CS#2 should be rejected as dishonest, and the Court should conclude that the notes do not include reference to a discussion about confidentiality because there was no such discussion, and that this goes to Ms Grieve's credit. Dr Al Muderis points out that Ms Grieve is silent on whether she started the recording at the commencement of the conversation prior to the promise being given, and submits that given the seriousness of the promise to a journalist as she describes it, it is "irreconcilable" that recording a promise is not important. 120 After weighing up the cross-examination of Ms Grieve about CS#2, and the submissions made about her evidence, I am unable to accept the characterisation given to that evidence by Dr Al Muderis. I accept Ms Grieve's evidence in relation to CS#2 as being coherent and honest. Ms Grieve's evidence that she would transcribe the partial recording she made of her conversation with CS#2 and then delete it is consistent with her desire to keep the conversation confidential, and the fact that the notes from the recording do not mention a promise is consistent with Ms Grieve's general evidence that she did not need to record promises for each source as she would recall who was a confidential source without documentary evidence. As noted elsewhere, the parts of a conversation by which a promise is given are unlikely to be other than short and memorable in the context of the investigation that Ms Grieve was conducting. 121 In accordance with my findings above, I accept that the promise was given in relation to CS#2 of the kind contemplated by s 126K(1).

Promise to CS#3 122 In June 2022, Ms Grieve contacted CS#3, a paediatric orthopaedic surgeon, by telephone, having been provided CS#3's telephone number by CS#11. Ms Grieve took notes of that conversation, though those notes do not record a promise of confidentiality. Ms Grieve acknowledges that those notes were not comprehensive, that she additionally relies on her memory, and it was not necessary to record things about confidentiality in her notes. In her July Affidavit, Ms Grieve states that in the June 2022 telephone conversation, in response to her stating that she was researching osseointegration and Dr Al Muderis, CS#3 told her that he was happy to speak but did not want his name mentioned as Dr Al Muderis is a well-connected and vindictive individual. Ms Grieve told CS#3 that this was fine as she was speaking to many people in that capacity and was happy to agree to confidentiality. Ms Grieve maintains that this meant she had given a promise that she would never use CS#3's name in any publication and would not divulge his identity at any point. Dr Al Muderis submits that a request to "not have my name mentioned" is not sufficient. In cross-examination, Ms Grieve agreed that "off the record" is not a promise of confidentiality unless there is further specificity, but that with CS#3 it was abundantly clear to her that this went well beyond the realms of simply off the record, and he was a confidential source. Ms Grieve in her affidavit evidence states that she spoke to CS#3 several times since the June 2022 conversation, always on a confidential basis. 123 Ms Grieve gave evidence that she was careful not to name CS#3 or provide identifying features in conversations where she was seeking further information in relation to things he had told her, as she understood his concerns about backlash from Dr Al Muderis to be sincere and pronounced. 124 Ms Grieve's notes of her conversation with CS#3 on 3 June 2022 record that CS#3 stated that Dr Al Muderis is a well-connected and vindictive individual, but, as stated above, do not record that CS#3 does not want his name mentioned, which Ms Grieve recalled CS#3 did state, as deposed to in her July Affidavit. Dr Al Muderis submits that it makes no sense that such a promise would not be recorded with the terms of it specified, and that the words Ms Grieve recalls from CS#3 could "just mean that the source did not want his name in the articles - not that he sought confidentiality". I do not accept the proposition that it does not make sense for Ms Grieve not to record a promise, especially in light of observations I have made about such an event being both short and memorable. On the basis of Ms Grieve's evidence, I find that she would readily have known and recalled who among the sources she spoke to were and were not willing to be identified. I also attach greater weight to the overall effect of her evidence than to snippets of conversation about such things as CS#3 not wanting his name being used as that is consistent with a promise being made that his identity would not be disclosed, rather than being inconsistent. 125 Dr Al Muderis points out that Ms Grieve accepted there is a difference between the two kinds of promise. Ms Grieve did not agree that she never told CS#3 she would not divulge his identity at any point when that was put to her in cross-examination. I once again do not accept Dr Al Muderis' submission that it makes no sense that Ms Grieve would not record a promise of confidentiality and its terms, for the same reasons as given in relation to the other confidential sources. 126 On 23 October 2023, Ms Grieve spoke to CS#3 again and asked if he would revoke his status as a confidential source. CS#3 said that he expected to remain confidential and did not release Ms Grieve from her confidential source obligations. Ms Grieve asked CS#3 to confirm his understanding of the promise she made to him, and he said he understood every conversation they had proceeded on the basis of confidentiality, and recalls her explaining that protecting source identity is very important for investigative journalism, that there was no way she would divulge his identity unless he changed his mind on that basis, and that they had had a number of telephone conversations under that agreement. I accept that evidence and find that it is consistent with the promise having been given in the first place. 127 I therefore accept Ms Grieve's evidence that she gave a promise to CS#3 in the nature of that contemplated by s126K(1).

Promise to CS#4 128 On about 8 July 2022, Ms Grieve made contact with a Sydney orthopaedic surgeon, CS#4, by telephone. Ms Grieve recalls that in that conversation, CS#4 said that he would only speak to her if his name were not associated with the story and if he was speaking off the record. Ms Grieve told CS#4 that she agreed to speak to him on those terms and considered him a confidential source. Ms Grieve maintains that this meant she had given a promise that she would never use CS#4's name in any publication, would not divulge his identity at any point, and that she could not refer to where he worked, or his previous places of employment, as this would identify him. While Ms Grieve took notes of that conversation, she did not record anything regarding a promise as to confidentiality in those notes as she did not see it as necessary, noting that recording in the promise stage can put people off. This is consistent with her described usual practice. I find this explanation plausible, and accept it as one of a number of valid reasons that Ms Grieve gave for not recording promises given to sources not to disclose their identities, noting again the likely brevity of such conversations and them being inherently memorable. 129 Ms Grieve's notes record that at one point CS#4 says "it's utterly off the record". When questioned about this phrase during cross-examination, Ms Grieve said that while the promise of confidentiality covered the whole conversation, CS#3 would reiterate this for particularly sensitive information and that once she started typing she would just record as much as she could or key points, absentmindedly, so she recorded that because CS#4 had said it. I find that this is consistent with her evidence as to her usual note taking practice. While Ms Grieve did not refer to the giving of any promise in her July Affidavit, she remedied this in her November Affidavit, stating that the failure to provide the additional information in her first affidavit was an oversight as the affidavit was written in a short amount of time. Dr Al Muderis submits that Ms Grieve failing to give this evidence and seeking to "plug the gaps" in her later affidavit shows that the more recent aspects of her evidence should be "treated as recent invention and rejected". I reject that submission as I find nothing implausible in the explanation provided by Ms Grieve. 130 In her July Affidavit, Ms Grieve exhibits notes from a subsequent conversation she had with CS#4. Those notes do not record a promise of confidentiality. In cross-examination, Ms Grieve stated that the reason for that lack of inclusion "is the same", meaning the same as for previous confidential sources, and that the conversation about confidentiality would often occur at the beginning of the conversation, which I readily interpret to mean this occurred before she started taking notes, as she explained that the act of typing could put a source off and cause them to stop talking. On 24 October 2023, Ms Grieve again spoke to CS#4, and asked if he was willing to release her from her confidential source obligations to which CS#4 said he was not willing to do so. Dr Al Muderis submits that Ms Grieve's notes do not support her contentions in her November Affidavit about confidentiality. He submits that the disclosure of CS#4's medical speciality and visits to Cambodia over 12 years identify that source, to the extent that the request to maintain the confidentiality privilege is implausible. Under cross-examination, Ms Grieve disagreed that the information in her affidavit and notes lead to the inevitable conclusion that CS#4 is an identified doctor. Dr Al Muderis submitted that Ms Grieve refusing to concede that CS#4 was obviously that identified doctor was "denying the obvious". As with previous confidential sources, I do not accept the characterisation that these answers were self-serving but instead find that Ms Grieve was maintaining the claim of privilege in cross-examination. 131 I am satisfied on the whole of the evidence concerning CS#4 that Ms Grieve did give CS#4 a promise of confidentiality of the kind contemplated by s 126K(1).

Promise to CS#6 132 On 13 June 2022, Ms Grieve spoke on the telephone with a foot and ankle surgeon, CS#6. Ms Grieve does not recall how she came into contact with CS#6. Ms Grieve took notes of that conversation, but they do not record a promise of confidentiality, and in her November Affidavit she states that those notes are not comprehensive. CS#6 told Ms Grieve that the conversation was proceeding on the basis that it was off the record and he did not want to be named, which Ms Grieve agreed to. Ms Grieve maintains that this meant she had given a promise that she would never use CS#6's name in any publications and would not reveal his identity unless CS#6 allowed her to do so in the future. Ms Grieve would not confirm or deny that she had spoken to CS#6 if anyone asked her during the research for the project as all contact was treated as strictly confidential. Each time Ms Grieve spoke to CS#6, she or CS#6 would confirm the nature of the call was confidential. 133 Ms Grieve spoke to CS#6 five to 10 times but did not make records of conversations subsequent to the first one as most of the other conversations were following up or testing information which did not require note-taking as she could retain them in her memory. 134 On 6 November 2023, Ms Grieve again spoke with CS#6. CS#6 told her that he did not release her from her confidential source obligations, and that it was his understanding that her promise of confidentiality to him was that their conversations were entirely off the record and confidential and that extended to every conversation they had and that meant his name would never be published in any story or released in any context. 135 A text message from CS#6 to Ms Grieve was tendered as an exhibit by Dr Al Muderis, showing CS#6 stating that he will need to check to see if he "can/should speak" to her. Ms Grieve responded to this message saying that her lawyers asked her to contact CS#6 regarding the terms of confidentiality around conversations they had prior to publication for a hearing, and asked to speak with him. 136 Dr Al Muderis submits that the notes of the conversation and texts between Ms Grieve and CS#6 do not contain anything substantiating the assertion of Ms Grieve in her July Affidavit that CS#6 told her the conversation was proceeding on the basis that it was off the record and he did not want to be named. 137 Dr Al Muderis further submits that a patient former of his, Brennan Smith, knew that CS#6 was speaking to Ms Grieve, a submission that is not supported by any evidence to which I was directed. Dr Al Muderis submits that this, along with other instances, show that third parties knew that a particular source had spoken to Ms Grieve, and in those circumstances it is difficult to see how the identity of the confidential source could be confidential, as the source was in contact with Ms Grieve and was providing her with information that was known to a third party over whom neither Ms Grieve nor the confidential source had any control. Dr Al Muderis submits that there was nothing to stop the third party telling their friends or family that there was a media investigation into Dr Al Muderis and that the source was assisting with it. In cross-examination, Dr Al Muderis put to Ms Grieve that a text message sent to her from CS#6 which says "[redacted] is happy to talk to you about a patient" shows that Ms Grieve was not preserving CS#6's identity, with which Ms Grieve disagreed. Third party knowledge is not of itself relevant to whether a promise has been given. 138 Dr Al Muderis submitted that Ms Grieve refusing to concede that CS#6 was obviously a named doctor was "denying the obvious". In cross-examination Dr Al Muderis put it to Ms Grieve's that she has given him so much information that she had identified CS#6 to him. Ms Grieve disagreed with that proposition. 139 I do not accept that Ms Grieve has rendered the privilege in some way inoperative by giving information sufficient for Dr Al Muderis to have identified CS#6, merely because Dr Al Muderis has a theory, however well-founded, about who CS#6 is. I do not accept that Ms Grieve has failed to maintain the privilege merely because a third party may have known about her speaking to CS#6. I accept that Ms Grieve promised confidentiality to CS#6 as contemplated by s 126K(1).

Promise to CS#7 140 CS#1 passed on CS#7's name to Ms Grieve and recommended she speak to him. CS#7 works in osseointegration. There is an issue dealt with below as to whether or not her affidavit conveyed the impression that he was a medical practitioner. 141 On 15 June 2022, Ms Grieve had a telephone conversation with CS#7. Ms Grieve took notes during this telephone call, which record CS#7 saying that (reproduced verbatim) "most poeple are nt prepared to put their hand up and have of thei rname, contact, source of infoamion - they want it kep silent… At this stage, that's what I would dlike.". The notes therefore do record a discussion about confidentiality, but do not record a promise of confidentiality, which Ms Grieve has said is because that was not necessary to record. In her July Affidavit, Ms Grieve states that CS#7 told her their conversations had to be off the record and confidential. CS#7 explained in very clear terms that he is not permitted by his employer to speak to her. Ms Grieve agreed. Ms Grieve maintains that this meant she had given a promise that she would never use CS#7's name in any publications and would not divulge his identity at any point. She understood he could risk losing his job if it became public that he had spoken to her, so was very careful in managing any information that he shared. Ms Grieve states that she would only confirm that she had spoken to him to certain patients or surgeons after seeking his approval. I pause to observe that this is consistent with the promise having been given in the first place. 142 In cross-examination it was put to Ms Grieve that she should have treated the notion that CS#7 was not permitted by his employer to speak to her with high suspicion given a number of other people at the Alfred had spoken to her. Ms Grieve declined to answer whether CS#7 worked at the Alfred, and additionally rejected this assertion, saying that one of her "on the record" sources spoke to her but was retired from the Alfred at the time, and another potential source from the Alfred did not speak to her on the record as he was prevented from doing so. 143 Ms Grieve in her November Affidavit reports that she has spoken to CS#7 approximately five to 10 times since their first conversation in June 2022, and on each occasion it was clear to her that their conversations were conducted on a confidential basis. 144 In mid-April 2023, Ms Grieve spoke to CS#7 and asked him what his understanding was of the nature of her promise of confidentiality to him. CS#7 told Ms Grieve that everything he shared with her was to be treated as strictly confidential, meaning his name would not be mentioned in any publication, conversation or other avenue. Ms Grieve asked CS#7 if he would waive his status as a confidential source, and he said he would absolutely not waive his confidential source status and would never have spoken to Ms Grieve if he thought his name would come out. 145 Dr Al Muderis submitted that Ms Grieve refusing to concede that CS#7 worked at the Alfred was again "denying the obvious". Dr Al Muderis further submitted that while Ms Grieve's notes of her conversation with CS#7 do record CS#7 saying that he would like his name, contact, and source of information kept silent, this serves to illustrate what is missing from Ms Grieve's notes in relation to the other sources, as if she had discussed confidentiality with other sources, one would expect it to be recorded in her notes as she specifically did for CS#7. Dr Al Muderis did not cross-examine Ms Grieve on this point. 146 This submission is curious. Its primary purpose seems to be to suggest that the record kept for CS#7 is indicative of the record that would have been kept for other sources had a promise really been given. That amounts in substance to a concession that this is a record of such a promise being given to CS#7. In any event, I consider this to be compelling evidence that a promise not to reveal CS#7's identity was given by Ms Grieve. However, just because such a record was kept for CS#7 does not provide a sufficient reason to treat this as some kind of systems evidence as to when a promise has, or has not been given. All it means is that consideration must be given to the whole of Ms Grieve's evidence for any other source where such a recording is absent. 147 In any event, in this conversation, Ms Grieve is recording first what CS#7 has said about "most people". As reproduced above at [141], she recorded (verbatim) "But most poeple are nt prepared to put their hand up… they want it kep silent. At this stage, that's what I would dlike". The difference here is that Ms Grieve is recording what CS#7 is saying because it is initially about the culture around talking about Dr Al Muderis, what other people have done and what patients are prepared to talk about. Her recording of "at this stage, that's what I'd like" is ancillary to that. Looking at the conversation in context demonstrates that this request is recorded because it was part of that flow of conversation about Dr Al Muderis and the culture of reporting about him, and so is quite different to a separate discussion of a promise of confidentiality at the start of a conversation for other confidential sources. It does not establish that Ms Grieve's practice was to record promises in all instances when they were given. 148 Dr Al Muderis further submits that two named sources, Carol Todd and Dr Bruscino-Raiola, knew that CS#7 was speaking to Ms Grieve. Dr Al Muderis submits that this, along with other instances, show that third parties knew that a particular source had spoken to Ms Grieve, and in those circumstances it is difficult to see how the identity of the confidential source could be confidential from first principles, as the fact that the source was in contact with Ms Grieve and was providing her with information was known to a third party over whom neither Ms Grieve nor the confidential source had any control. I have already rejected this argument generally and in relation to other sources, noting that s 126K(1) is concerned with the promise that a journalist has given to a source, not what others may know or have worked out. Suspicion or even knowledge within a limited circle is not the same as disclosure of an identity by a journalist or employer of a journalist, in the context of publication of what that person has told the journalist about the conduct of someone reported upon. 149 Dr Al Muderis submits that, as CS#7 is the only confidential source for which there is contemporaneous documentary evidence of a discussion of confidentiality, this is the only source in relation to which the Court should be satisfied the relevant promise was made. As already indicated, I am satisfied that a promise of confidentiality was made by Ms Grieve to CS#7 of the kind contemplated by s 126K(1), but do not use this to cast doubt on the making of promises by Ms Grieve to other confidential sources, for the reasons set out above.

Promise to CS#9 150 Ms Grieve describes that during a discussion with another source, Professor Ian Harris, she asked whether he would be able to recommend someone who had expertise regarding recalls of medical implants. He recommended CS#9, an orthopaedic surgeon, to Ms Grieve. Ms Grieve asserts journalist privilege in relation to CS#9. 151 On 3 August 2022, Ms Grieve spoke to CS#9 over the telephone. In advance of that conversation, Ms Grieve and CS#9 communicated to arrange the call by way of email and text, and she offered the first conversation to be off the record to allow for broad-ranging and uninhibited conversations. 152 Ms Grieve gave evidence that at the beginning of the telephone call, CS#9 asked for the conversation to be off the record and said that he wished to remain a confidential source. Ms Grieve also gave evidence that at the start and end of the conversation a promise of confidentiality had been given so that the nature of the agreement was that CS#6's name would not be used, and he would not be identified as a source. While Ms Grieve took notes of this conversation, there is no record of this in those notes. 153 Dr Al Muderis put to Ms Grieve in cross-examination that there was an absence of any contemporaneous recording of CS#9's request for confidentiality. Ms Grieve responded that it was not necessary to record this, referring back to when she had previously explained that her practice of note-taking is not to make a transcription of the conversation, and that she will sometimes not take notes if she thinks it may make a source feel nervous. 154 In her affidavit evidence, Ms Grieve noted that CS#9 had not had any exposure to Dr Al Muderis and that their conversation was more generally about recall and regulatory processes around custom implants. In cross-examination, Dr Al Muderis confirmed with Ms Grieve that the conversation did not concern him specifically, and submitted that given the generality of the conversation, there is no reason why CS#9 would need confidentiality to the extent sought. In her affidavit evidence, Ms Grieve attested to the "context of the conversation" making it clear to her that CS#9 wanted to remain confidential. Dr Al Muderis argues that the context in fact shows that CS#9 did not say anything particularly about Dr Al Muderis, and although CS#9 may not have wanted to be quoted in the article, his concerns about adverse effects warranting complete confidentiality would not make sense in this context. I do not accept that this makes no sense and therefore reject those submissions. There is no basis for the suggestion that it is necessary that the information given had to be specifically about Dr Al Muderis for there to be an operative promise for the purposes of s 126K(1). 155 The respondents submitted that the context of the conversation set out that Ms Grieve asked CS#9 about conflicts that might arise when a surgeon designs implants used on patients, and that it is uncommon in Australia for surgeons to design implants that they then prescribe to patients. They submit that it is clear from this context why CS#9 would want the conversation to be confidential, given CS#9 was commenting on a practice engaged in by Dr Al Muderis. I accept that submission. 156 I have found Ms Grieve to be a truthful witness and accept that a promise of confidentiality was made, given to CS#9 of the kind contemplated by s 126K(1).

Promise to CS#11 157 Ms Grieve was first referred to CS#11, an orthopaedic surgeon at the Royal Prince Alfred Hospital, on 14 June 2022 by CS#8, who also provided her with CS#11's mobile number. Ms Grieve asserts journalist privilege in relation to the identity of CS#11. 158 Ms Grieve exchanged text messages with CS#11 between 14 and 15 June 2022, arranging a time to speak on the telephone. During the telephone conversation that ensued, Ms Grieve said that CS#11 told her he "did not want his name anywhere near this" and that he had reservations speaking to her even off the record. She said that he expressly requested everything to be off the record and confidential. Ms Grieve took this to mean that she would never publish CS#11's name or any identifying feature, nor disclose his identity at any point. As a result, Ms Grieve only took very brief notes of their conversation and refrained from writing CS#11's name within the notes as she was attuned to how concerned CS#11 was about his identity being revealed. Ms Grieve says that she gave CS#11 a guarantee that she would not name him and that their conversations were confidential and off the record. 159 On 23 October 2023, Ms Grieve spoke to CS#11 again and he confirmed that he wished for his identity to remain secret, that he did not release her from his confidential source obligations, and that he never would have agreed to speak to her if it would mean his name would be revealed. 160 It was put to Ms Grieve in cross-examination that she had claimed that CS#11 had refused to tell her the name of an anorexic patient they spoke about (patient X) in her July Affidavit, and she was questioned as to how she had then obtained patient X's name. Ms Grieve was unable to recall this information. Some text messages she exchanged with CS#11 were shown to her in the course of cross-examination, the content of those text messages indicating that CS#11 had sent Ms Grieve an article about patient X, showing the patient's name. Dr Al Muderis suggested to Ms Grieve that this meant she had discussed patient X's name with CS#11. Ms Grieve denied this, stating she already knew patient X's name by that point in time by another means. She did not recall why CS#11 had sent her that article. Dr Al Muderis submits that this undermined Ms Grieve's credibility, as she was "denying the obvious" and her answers could only be regarded as self-serving. 161 I do not accept the proposition that Ms Grieve's July Affidavit is shown to be incorrect due to the text message exchange regarding the patient X article. It is feasible that she could have obtained patient X's name some time between the 14 June 2022 conversation with CS#11 and the 4 February 2023 text message. Accordingly, I do not consider this aspect of Ms Grieve's affidavit evidence to have been undermined during cross-examination, and find that, as with previous confidential sources, these answers were not self-serving but that Ms Grieve was maintaining the claim of privilege in cross-examination. 162 Dr Al Muderis also submits that Ms Grieve's notes taken during her telephone call with CS#11 show statements from CS#11 that "I don't want to be involved in politics" and "it's probably not best that it comes from me" are at the end of Ms Grieve's notes, showing that even if these statements evidence a promise of confidentiality, it was not an anterior promise. I do not accept that Ms Grieve's notes here in any way preclude an earlier promise. This submission also reveals a misinterpretation of s 126K(1), which does not require that I conclude that it is most likely that the giving of the promise took place early in the conversation, given the concerns expressed by CS#11 the giving of the promise therefore meets the more stringent requirement in Ashby, going beyond what is considered necessary. Section 126K(1) does not require that a promise must be made at the beginning of a confidential interaction, nor that it must be documented in writing. Applying these principles as explained earlier in these reasons, and noting that I accept Ms Grieve's evidence to be reliable, I am satisfied that a promise not to disclose CS#11's identity was given to him by Ms Grieve of the kind contemplated by s 126K(1).

Promise to CS#12 163 CS#12 was recommended to Ms Grieve by CS#19 who provided her with CS#12's contact details. 164 On 16 June 2022, Ms Grieve first sent CS#12 a text message and spoke to CS#12 on the same day over the telephone while taking contemporaneous notes. She asserts journalist privilege over this source. Ms Grieve did not describe any promise of confidentiality made to CS#12 in her July Affidavit, but attested that this was an oversight in her November affidavit and that CS#12 had requested that the conversation be off the record at the beginning of their conversation, which she understood to mean that the conversation would be confidential and she would not divulge his identity at any point. She confirmed to CS#12 that the conversation would proceed on the basis that it was confidential. Ms Grieve spoke to CS#12 again on 23 October 2023 to clarify the promise made, and she asserts that CS#12 told her that he would not release her from her promise of confidentiality. He asked her not to use his name in publications or any other forum. 165 It was put to Ms Grieve in cross-examination that the promise of confidentiality alleged in Ms Grieve's November Affidavit is a recent invention, and that her contemporaneous notes showed that CS#12 indicated the conversation was off the record at the end of the conversation, not the beginning, and when Ms Grieve asked if he would go on the record, he had responded with "maybe" and that he would have to "clear some of that with my bosses". Ms Grieve responded reiterating that CS#12 had requested their conversation be off the record at the beginning, and testified that these notes demonstrate her testing whether he was sure he could not go on the record and asking him to reconsider at the end of the conversation. Dr Al Muderis submits that Ms Grieve's lack of evidence as to the promise of confidentiality in her July affidavit was a "feeble excuse" and the November Affidavit was seeking to "plug the gaps" so it should accordingly be "treated as recent invention and rejected". However, I consider Ms Grieve's evidence to be reliable and accept that her notes on the conversation with CS#12 depict a reiteration of a promise made earlier in the conversation. Accordingly, I reject the notion that the promise is a recent invention. 166 Dr Al Muderis further submits that Ms Grieve's notes do not show an insistence on confidentiality, nor that it happened at the outset of the conversation. As stated above, s 126K(1) does not require that a promise must be made at the beginning of a communication with a source or prospective source, nor that it must be documented in writing. I do not accept that a promise must be shown to be made with "insistence" for non-disclosure of identity in order to be shown to be a promise of the kind contemplated by s 126K(1). In any case, the 23 October 2023 conversation outlined in the November Affidavit shows that Ms Grieve did make a further attempt to bring CS#12 onto the record, but he refused. Accordingly, I accept that a promise of confidentiality was made with regards to CS#12, of the kind contemplated by s 126K(1). I find it is more likely that the promise was given early in the conversation, exceeding what I consider is required and meeting the more stringent "anterior" promise test in Ashby.

Promise to CS#13 167 Ms Grieve describes coming across CS#13's clinic while trying to locate patients in Iraq and doing a "deep dive" into his Instagram page. Ms Grieve spoke to CS#13 solely through Whatsapp messages in the period between 29 June 2022 and 20 September 2022, those messages showing that a promise to keep his name secret was made on 29 June 2022. Ms Grieve asserts journalist privilege in relation to CS#13. The messages exchanged between Ms Grieve and CS#13 also show that CS#13 asked Ms Grieve to prove she is a journalist early in the conversation by sending through an ID or website, stating that this was because "this issue is so sensitive and I have important information about it". Ms Grieve took this to mean that CS#13 was being careful about who he spoke to regarding Dr Al Muderis, and that there was a character of secrecy to the conversation. CS#13 indicated he would be telling her "secrets" and that "Iraq is corrupt" which Ms Grieve took to mean that the information would be critical of Dr Al Muderis and that CS#13 could face risk of retribution from him or punishment in Iraq if his identity were made known. Ms Grieve also noted that the request for secrecy came early in the conversation and for this and the aforementioned reasons, Ms Grieve formed the view that a promise of confidentiality had been made over the entirety of the text conversation. On 27 October 2023, Ms Grieve also spoke to CS#13 over the telephone, during which call CS#13 confirmed that he did not release Ms Grieve from her confidentiality obligations. 168 In cross-examination, it was put to Ms Grieve that CS#13 "spilled his guts" for several pages of text messages before requesting secrecy, which Ms Grieve denied. The respondents argued in their submissions that this proposition by Dr Al Muderis was without foundation, as CS#13 had insisted on proof of Ms Grieve's credentials before sharing information with her, explaining that the issue was "sensitive". 169 Ms Grieve also denied in cross-examination that the evidence regarding CS#13 in her affidavit was an ex post facto reconstruction of the text messages, and pointed out that the text messages were annexed to her affidavit and could be read plainly as to their meaning. She further explained in cross-examination that in calling CS#13 to confirm his view on the confidentiality of his identity, she had been careful not to mention any promise of confidentiality directly and had just asked him to describe to her what his understanding of the conversation was. 170 Dr Al Muderis argues that the promise to keep CS#13's name secret was made several pages into their text conversation, and was not anterior to the provision of the information, which indicates that CS#13 was content to provide information in circumstances where no promise had been made. Because of the conflicting submissions about whether or not the WhatsApp text conversation between Ms Grieve and CS#13 contained a promise by her not to disclose his identity, I have read and considered all of the approximately 80 messages in evidence. This reveals the following: (a) After receiving a response to a WhatsApp call, Ms Grieve texted that she was an Australian journalist trying to speak to Iraqi specialists about osseointegration. (b) After CS#13 indicated who he was, Ms Grieve texted that an Australian team lead by Dr Al Muderis visited Iraq to perform implant surgery. (c) Before any substantive information was conveyed by CS#13, he asked for proof that Ms Grieve was a journalist. In a text sent some 25 seconds later, he explained that this was because the issue was so sensitive and he had important information about it. (d) Less than a minute later, Ms Grieve sent a photo of herself holding identification, and sent a link about her on The Age website. (e) After some further texts of no present moment, Ms Grieve texted to say she was investigating this surgery. CS#13 asked why, and then texted to say that he could give Ms Grieve "secrets that nobody know it in all the world". (f) A text conversation then ensued, during which CS#13 conveyed adverse information about Dr Al Muderis. It was plainly conveyed in the context of telling her that he was giving secret information, and in context was expressing a need for secrecy about himself. (g) After that information was conveyed, but within the same text conversation, some 48 minutes after the reference to secrecy, CS#13 texted "Please keep my name in secret now". Almost immediately Ms Grieve replied "Yes I will". That request and that reply has to be read in the context of the earlier reference to CS#13 conveying secrets only to someone who had provided proof of being a journalist. The whole tenor of the text conversation was about secrecy. 171 It is plain that Ms Grieve gave an express promise not to reveal CS#13's identity, as he had expressly requested. Dr Al Muderis does not contend otherwise. Rather, he seizes upon the reference to the need for an anterior promise by Rares J in Ashby, and submits that the information was given without the necessary promise first having been given. In my view, it is unlikely that Rares J would have imposed such an unrealistic and artificial line in the sand in circumstances that are so different from those in Ashby, especially as the promise was overtly sought and given after providing what was overtly described as "secret information" before it was given. I am unable to read into s 126K(1) such a technical requirement. 172 As mentioned above, the legislation is silent with regards to the timing of a promise, and so a promise made mid-way through a conversation may be sufficient to satisfy the terms of s 126K(1). In the case of CS#13, it is otherwise clear on the face of the Whatsapp messages that a promise not to disclose his identity was made by Ms Grieve of the kind contemplated by s 126K(1).

Promise to CS#14 173 Ms Grieve did not provide any evidence as to how she came into contact with CS#14. On 20 June 2022, Ms Grieve sent a text message to CS#14 and shortly thereafter had a telephone conversation with him, taking contemporaneous notes. Ms Grieve recalls CS#14 telling her he did not want to be named in any publication or discussions, and the conversation proceeded on that basis. Ms Grieve describes it as being clear that she had promised confidentiality to CS#14 during this conversation, and CS#14 confirmed this during another telephone call on 1 November 2023, where he stated that the conversation was off the record, anonymous and confidential. Ms Grieve asserts journalist privilege in relation to CS#14. 174 Dr Al Muderis argues that nothing in the notes taken during the conversation with CS#14 supports the assertion that CS#14 wanted the whole conversation to be confidential. Although Ms Grieve's notes do indicate CS#14 saying that he does not want his name put forward in discussions, it was put to her in cross-examination that this was only in relation to the topic being discussed at the time, which Ms Grieve rejected, explaining that this was merely a reiteration of their conversation regarding confidentiality at the beginning. 175 Although Dr Al Muderis puts great emphasis on the absence of the promise being recorded in Ms Grieve's notes, having a written record of a promise is not an element required to satisfy s 126K(1), even if that may make the conclusion easier to reach. In addition, Ms Grieve explained her note-taking practices when she gave her evidence, explaining that they are not a complete transcription of the conversation. As I have already determined, I accept Ms Grieve's evidence as credible and able to be accepted without documentary corroboration. I find that Ms Grieve did give CS#14 a promise not to disclose his identity.

Promise to CS#15 176 Ms Grieve said in her July affidavit that she had been introduced to CS#15 through another source. Ms Grieve asserts journalist privilege in relation to CS#15. 177 Around June 2022, Ms Grieve had a telephone conversation with CS#15 and took contemporaneous notes. Ms Grieve said that CS#15 was very reluctant to speak to her unless it was strictly confidential, and that he did not want his name anywhere near it. Ms Grieve agreed. Ms Grieve also had a conversation with CS#15 again in mid-August 2023, during which she says he informed her that he did not release her from her confidentiality obligations. 178 Dr Al Muderis submits that Ms Grieve's notes of her conversation with CS#15 did not contain anything showing a promise of confidentiality. This assertion was also put to Ms Grieve in cross-examination, to which she responded that "there is just no doubt in my mind, as with all of the other confidential sources, that confidentiality was requested and guaranteed." Dr Al Muderis went on to further put to Ms Grieve that because CS#15 had suggested they meet in a public café, this meant he was happy to meet her in open in person. Ms Grieve agreed but correctly questioned the relevance of this proposition. I consider the utility of any conclusions that may be drawn from this to be very limited, not least because Ms Grieve would not be in a position to speak to the intentions of CS#15. 179 Dr Al Muderis concedes that a text message was sent to Ms Grieve on 10 July 2022, showing CS#15 stating to her "I assume that this remains 100% off the record", and put to Ms Grieve in cross-examination that this was meant to apply only to the patient names and numbers provided in the same text message, not the entire conversation. Ms Grieve denied this. 180 I consider it to be clear on the face of the text message sent by CS#15 that the entire conversation is intended to be confidential, not least because the use of the word "remains" implies that prior discussions had been requested to be off the record too. Accordingly, I find Ms Grieve's evidence to be reliable and to weigh in favour of a promise in substance not to disclose CS#15's identity having been given of the kind contemplated by s 126K(1).

Promise to CS#16 181 Ms Grieve did not provide any evidence as to how she came into contact with CS#16. 182 On 16 June 2022, Ms Grieve spoke to CS#16 over the telephone and took contemporaneous notes of the conversation. Ms Grieve asserts journalist privilege in relation to CS#16. She said that CS#16 informed her at the beginning of the conversation that he needed to speak confidentially because they were discussing patients, and asked not to be named at all. Ms Grieve asserts that she assured him that his identity would remain confidential, and understood him to mean that she would never use his name in any publications or divulge his identity at any point. 183 Dr Al Muderis submits that nothing within the contemporaneous notes of the conversation that Ms Grieve took substantiates the existence of a promise of confidentiality and that there was no limitation placed as to the obligation not to disclose him as a source in Ms Grieve's July affidavit. Dr Al Muderis did not cross-examine Ms Grieve on this point. 184 As I have already determined, I accept Ms Grieve's evidence as credible and able to be accepted without documentary corroboration, noting that she explained her note-taking practices are not to make a complete transcription of her conversations with sources. There is no reason not to accept Ms Grieve's account of her conversation with CS#16 and that a promise in substance not to disclose CS#16's identity was given by Ms Grieve, of the kind contemplated by s 126K(1).

The adverse effect on confidential sources as a reason for non-disclosure - s 126K(2)(a)

Adverse effect on CS#1 185 Ms Grieve in her affidavit evidence said that CS#1 told her that he wanted the truth to come out about Dr Al Muderis' conduct but was worried about Dr Al Muderis suing him for defamation. CS#1 also said that there is a general culture and understanding among orthopaedic surgeons that they do not speak ill of other surgeons, and that he was willing to speak to Ms Grieve to give her information, including the names of patients, based on the understanding that he would remain a confidential source. Ms Grieve's notes of her conversation with CS#1 taken contemporaneously show that he told her that there are a lot of people in the community who are frustrated with the situation with Dr Al Muderis who very litigious and has gone after his colleagues. 186 In a conversation with Ms Grieve on 23 October 2023, CS#1 informed Ms Grieve that he was very concerned about the repercussions against him if his identity as a source were disclosed as he believes Dr Al Muderis can be a very vindictive and unpredictable man. CS#1 stated that he is scared of retribution from Dr Al Muderis, including badmouthing to colleagues and future patients which might affect his practice, and targeting from Dr Al Muderis' supporters in the form of negative reviews which might adversely impact his practice. In cross-examination, Ms Grieve confirmed that she began the conversation of 23 October 2023 by telling CS#1 that she needed information to help keep him confidential, checking in to see if he would waive the confidentiality or, if not, if he could provide information to help with the application to keep him confidential. Ms Grieve also confirmed in cross-examination that she asked CS#1 to set out possible adverse consequences he could think of if he were named. Dr Al Muderis did not cross-examine Ms Grieve as to the truthfulness of her account of her conversation with CS#1 in which he identified the adverse consequences. 187 Dr Al Muderis submitted generally that the only specific risk to the confidential sources which is suggested by Ms Grieve in her affidavit evidence is that Dr Al Muderis may seek legal action against the sources if revealed. Dr Al Muderis characterises this on the "low end of the spectrum" in terms of what would be considered adverse, submitting that no significant weight can be given to it sufficient to overwhelm the public interest in ensuring Dr Al Muderis is in a position to test prejudicial evidence in the proceeding. 188 Dr Al Muderis also argued that "any likely adverse effect" within s 126K(2)(a) is not a subjective test as to perceived adverse effect, and thus mere statements of belief that Dr Al Muderis is litigious or vindictive are inadmissible. It should be noted that Dr Al Muderis sought to advance this argument with respect to all the confidential sources, which I have rejected with reference to Madafferi at [118], which states that the likely adverse effect contemplated by s 126K(2)(a) can include the fear of an adverse event taking place. The adverse effect expressed by CS#1 to Ms Grieve is that he has a fear of being sued by Dr Al Muderis, the fear of vindictive acts by Dr Al Muderis including badmouthing of CS#1 to his colleagues and future patients which might affect his practice, and a fear of being targeted by Dr Al Muderis's supporters through negative review which might impact his practice. I accept that CS#1 expressed such fears, and that this is an adverse effect on him for the purposes of s 126K(2)(a), but obviously of less weight than a proven risk of an event that constitutes realised harm, such as a fear being proven to be likely to be realised.

Adverse effect on CS#2 189 In a conversation with Ms Grieve on 23 October 2023, CS#2 informed Ms Grieve that he believes Dr Al Muderis to be highly litigious and worries that Dr Al Muderis might pursue him legally if his identity is revealed. Ms Grieve's evidence states that CS#2 told her he goes to great lengths to avoid disputes and is a surgeon of good standing. He is concerned that becoming involved in a dispute with Dr Al Muderis will affect his reputation and practice. CS#2 was concerned that his leadership roles at hospitals could be negatively impacted by being associated with this case, as well as his relationships with patients and colleagues. CS#2 told Ms Grieve that he spoke to her only because he wished to share concerns about Dr Al Muderis and thought it in the public interest to do so. Dr Al Muderis did not contest this evidence with regards to CS#2. 190 As with CS#1, I accept the fear of adverse consequences, here a fear of a dispute, reputational damage and damage to his practice if he were revealed as a source, is an adverse effect contemplated by s 126K(2)(a) to be considered in the weighing exercise required by s 126K(2).

Adverse effect on CS#3 191 During a conversation with CS#3 on 23 October 2023, CS#3 said that he considered Dr Al Muderis to be a well-connected and vindictive individual, a belief which he had previously articulated to Ms Grieve in June 2022, and that he did not want to be targeted by him. CS#3 considered that Al Muderis' motivation in trying to expose those who spoke out against him was to take down names and get ready for action. He said he is afraid of being sued for defamation by Dr Al Muderis and the financial consequences that would flow from that. CS#3 said that Dr Al Muderis has deep pockets, but CS#3 works a lot in the public system so he is not wealthy. CS#3 told Ms Grieve that he is afraid of Dr Al Muderis launching an attack against his good reputation in the industry, that he has not been sleeping well, and that he fears being identified will increase his stress. He also told Ms Grieve that he is motivated by the public good but has been very stressed out in the past taking up fights with powerful entities. CS#3 told Ms Grieve that Dr Al Muderis will seek revenge by going after him in litigation and posting fake reviews about him if his identity is revealed. CS#3 also stated that the risk to whistleblowers of speaking out is not worth it, and if their identity is revealed they will never speak to a journalist again because they do not need the grief, and it is easier to say nothing. 192 On 1 November 2023, CS#3 texted Ms Grieve stating that he had a further thought about his concerns regarding loss of confidentiality. While Ms Grieve has not exhibited that text message to her November affidavit, she has quoted that text message, and it has since been admitted in evidence: Morning Charlotte. Thanks for the talk on Monday. I've had a further thought about my concerns re the loss of confidentiality. As discussed, my expectation is that Al Muderis will pursue any that he sees has wronged him. That may be down legal channels, or obliquely via reputational damage. One way that could be easily done is by posting false reviews about me and others on websites such as Ratemd. Patients and parents look at these and adverse entries will affect referrals. It is my view that Al Muderis' interest in getting names is not to test the veracity of your claims, but to seek revenge on those that you spoke to. I hope that your legal team can convince the judge of that. Thanks. 193 I place some weight on this text message, not as evidence of the truth of what Dr Al Muderis would be likely to do, but rather to demonstrate that the adverse effect by way of fears felt by CS#3 is not confined to fear of litigation, and that those fears are genuinely held. 194 Dr Al Muderis submits that evidence regarding the promise occurring after this proceeding commenced is problematic as sources are more likely to assert they had never intended their name to be revealed in retrospect. In regard to CS#3, he refers in his text message to "loss of confidentiality", suggesting the prior existence of confidentiality to this point and states "as discussed" alluding to previous conversations with Ms Grieve in which CS#3 had expressed concerns about what may occur if he were revealed as a source. I am therefore unable to accept these submissions, and instead accept Ms Grieve's evidence that CS#3 expressed fears of an adverse effect upon him if his identity was revealed, as contemplated by s 126K(2)(a).

Adverse effect on CS#4 195 CS#4 told Ms Grieve that Dr Al Muderis has a very good media and public profile which makes it impossible to criticise him, and also has very good lawyers so lots of people are terrified of speaking out about him, and are afraid of him. CS#4 said that while Dr Al Muderis has been reported to regulators, there has been no action because of his positive media profile and his lawyers. 196 In the conversation between Ms Grieve and CS#4 on 24 October 2023, CS#4 also told Ms Grieve that Dr Al Muderis is a very powerful man with a lot of people wrapped around his fingers, and is very manipulative. CS#4 told Ms Grieve that he is fearful that Dr Al Muderis will cause professional problems for him, as he is aware that Dr Al Muderis has a track record of doing this. He believes that Dr Al Muderis often has his lawyers send letters when someone says something he does not like, and he is afraid of becoming caught in a legal battle because he does not have the funds to fight it. CS#4 told Ms Grieve that he was at a delicate point in a business negotiation and believes that if he is named as part of the story then it could seriously affect his goodwill and cost him hundreds of thousands of dollars. He told Ms Grieve that if he were named in connection with the case he would be under immense stress. Dr Al Muderis did not contest this evidence during the hearing. 197 I am satisfied that Ms Grieve truthfully conveyed that CS#4 is fearful of Dr Al Muderis knowing his identity, which is to be distinguished from suspicions and beliefs that are not confirmed, and that this fear alone is itself an adverse effect of disclosing his identity within the contemplation of s 126K(2)(a).

Adverse effect on CS#6 198 In the conversation between Ms Grieve and CS#6 on 6 November 2023, CS#6 told Ms Grieve that he is concerned about Dr Al Muderis' history of bullying people and has concerns that Dr Al Muderis will bully him if he is identified. He is concerned about any form of legal action Dr Al Muderis may take against him if he is identified, and concerned about the negative impact on his practice and professional relations if Dr Al Muderis were to spread negative rumours about him. CS#6 told Ms Grieve that is concerned that Dr Al Muderis may lodge a vexatious complaint against him to the Health Care Complaints Commission. Dr Al Muderis did not challenge this evidence about CS#6 during the hearing. 199 I accept Ms Grieve's evidence regarding CS#6's fears if he were identified, and as in the case of the other confidential sources, I accept that fear of an adverse event, in this case bullying, legal action, and negative rumours impacting professional practice and relations, is a relevant adverse effect consideration for the purpose of the balancing test, engaging s 126K(2)(a).

Adverse effect on CS#7 200 In their conversation of April 2023, CS#7 told Ms Grieve that Dr Al Muderis is litigious and scares people off with litigation and that nobody wants to put their hand up and go on the record to speak out against him. CS#7 said that he was not permitted by his employer to speak to her, and was advised by his employer on the basis of legal advice not to speak to Ms Grieve and therefore he would lose his job if his name were revealed. CS#7 told Ms Grieve that he would suffer emotional stress and financial cost if Dr Al Muderis were to come after him personally. Dr Al Muderis did not contest this evidence with regards to CS#7. 201 I accept that CS#7 conveyed the above fears to Ms Grieve, and that those fears constitute an adverse effect to be considered in the balancing test required by s 126K(2), falling within the terms of s 126K(2)(a).

Adverse effect on CS#9 202 Ms Grieve provided evidence that she spoke to CS#9 again on 24 October 2023, and he told her that he holds a senior role on a regulatory body with strict policies around speaking to the media, and he feared that he may face professional consequences or lose the position if he was named, rather than any personal consequences from Dr Al Muderis himself. 203 Dr Al Muderis did not directly dispute this evidence, except in arguing that given the information provided by CS#9 did not directly concern Dr Al Muderis, CS#9's concerns about adverse effects were unfounded. However, as discussed in Madafferi at [118], the test in s 126K(2)(a) may extend to a subjective fear of an adverse event taking place. I am satisfied on Ms Grieve's evidence that CS#9 expressed such fears as contemplated by s 126K(2)(a).

Adverse effect on CS#11 204 On Ms Grieve's evidence, during their 15 June 2022 conversation, CS#11 was very reluctant to speak to her due to fear of repercussions from Dr Al Muderis, which he identified during the 23 October 2023 telephone conversation as being concerns that Dr Al Muderis may be litigious and that he had an insufficiency of finances to defend a case brought against him. CS#11 also told Ms Grieve that he may be asked to leave a number of his professional high-profile positions if he is named publicly in connection with this matter, and that his stress levels would be magnified. 205 Dr Al Muderis did not dispute this particular evidence of CS#11. I am satisfied on Ms Grieve's evidence that CS#11 expressed such fears, fully within the terms of s 126K(2)(a).

Adverse effect on CS#12 206 Ms Grieve stated in her July affidavit that the rationale CS#12 gave for wanting confidentiality was that he had concerns that Dr Al Muderis is in a position to hurt him and his company professionally, and his belief that Dr Al Muderis is a professionally vindictive person who may disrupt any work referred to CS#12. He also expressed concern about being sued for defamation by Dr Al Muderis. 207 Dr Al Muderis did not dispute this particular evidence provided by Ms Grieve as to CS#12. I am satisfied on Ms Grieve's evidence that CS#12 expressed and held such fears and per Madafferi, that those fear constitute an adverse effect for the purposes of s 126K(1)(a).

Adverse effect on CS#13 208 During their conversation on 27 October 2023, Ms Grieve asserts that CS#13 was very concerned about repercussions against him if his identity as a source were revealed, his rationale being that Dr Al Muderis is a powerful person with a lot of money, and he or his associates may seek to "disturb" CS#13 in some way if his identity is disclosed. He was also concerned that Dr Al Muderis or his supporters may act aggressively towards him or disparage his business. He expressed he was worried that exposing Dr Al Muderis may create a dangerous environment for him and his family. 209 Dr Al Muderis did not dispute this evidence as to CS#13, and I am satisfied on Ms Grieve's evidence that CS#13 expressed and held such fears, and that this constitutes an adverse effect for the purposes of s 126K(2)(a).

Adverse effect on CS#14 210 During the 1 November 2023 conversation, Ms Grieve was informed by CS#14 that he was concerned about repercussions against him if his identity is revealed. He told her that he fears a backlash "of an egregious nature" from Dr Al Muderis, trauma to his family, and exposure to a stressful scenario affecting his partner who has a condition making them unable to cope well with stress. Dr Al Muderis did not challenge this evidence regarding CS#14 in cross-examination or submissions. I am satisfied that an adverse effect arising from the fears expressed has been established in accordance with s 126K(2)(a).

Adverse effect on CS#15 211 During the mid-August 2023 telephone conversation, Ms Grieve stated that CS#15 expressed concern to her that disclosure of his identity could result in Dr Al Muderis interfering with his business interests, and that his patients may not trust him if they became aware he had spoken out about this case. I am satisfied that an adverse effect arising from the fears expressed has been established in accordance with s 126K(2)(a).

Adverse effect on CS#16 212 Ms Grieve stated in her November affidavit that she has not been able to get in touch with CS#16 again after their conversation in June 2022, and so could not identify any specific adverse consequences he would suffer.

Public interest in non-disclosure as provided for by the text of s 126K(2)(b) by reference to this class of case and to this case in particular 213 As noted at [30] above, the public interest in communication to the public by the media, and the corollary of media access to sources of facts, as set out in s 126K(2)(b), is not expressed in terms that are concerned with any particular case. The weight of the public interest can be considered in a number of different ways of increasing granularity and perhaps thereby demonstrable weight. This may be considered at the level of a general principle of the kind identified in Cojuangco at 354, and in particular the passage emphasised by Rares J in Ashby at [22], namely the self-evident truth that information will more readily be supplied to journalists when they undertake to preserve confidentiality in relation to their sources of information. The legislature has given substantial statutory force to that truism by the creation of statutory privilege and limited circumstances in which it may be overridden, which must be respected and applied faithfully. 214 The terms of s 126K(2)(b) create a statutory norm that it is inherently in the public interest that facts and opinion be communicated to the public by the media, and that the media have access to sources of facts, and to that end, the identity of a person providing such facts or opinion to whom a promise has been given not to disclose that identity will be enforced unless a greater public interest in disclosure has been established that also outweighs any adverse effect of such disclosure to the source or someone else. This necessarily reflects a legislated concern as to the predictable chilling effect on the obtaining and publishing of information if the identity of a confidential source is disclosed. 215 As was observed in Stuart at 679, in relation to the parallel area of informer identity, the unquantifiable fear is that sources will dry up because of the consequences if their identity is revealed, including by way of confirmation of suspicions and beliefs. This is inherently such a weighty consideration, that the public interest in disclosure will need to be substantial. Of course, the weight of the public interest can be seen to rise with the importance of the information more likely to thereby become available, and be published, if the identity of sources is not revealed. That in turn leads to the capacity to elevate the weight of the public interest by the demonstration of why the information has the character of being of greater importance. 216 The importance of particular information in elevating the public interest at stake may also be considered from the perspective of a particular class of case, such as investigative journalism in relation to the practice of medicine in Australia, or indeed any business, profession or occupation that is likely to affect society in some important way if there is an identified issue or problem with conduct that is or may be taking place; or it may even go further by reference to the particular case at hand. This case is an example of both. The evidence in relation to the particular case at hand is dealt with in some detail below in relation the support given to the public interest in non-disclosure as supported by the confidential source evidence. But going back to the level of this class of case, there is an inherently strong public interest in those who have information about such conduct not being deterred in providing information to the media, and that information being published when appropriate, but in accordance with the law, including the law of defamation. 217 In common parlance, this is referring in particular to "whistleblowers" on matters in the public interest and especially of public importance. The greater the power, wealth or influence, or perceived power, wealth or influence, of a person against whom disclosures are made, the greater the risk, or perceived risk, of adverse consequences if the identity of the source becomes known to that person, and the greater the likelihood that such information will not be forthcoming. A fear of that happening does not necessarily have to be rational; it is enough that is or may be reasonably and genuinely held. There will prima facie be a strong public interest in protecting, and being seen to protect, the identity of such sources, especially as they approach a category of source that is akin to an informer. 218 In this case, this is conveniently illustrated by reference to some of the matters of public interest pleaded in [42] of the amended defence and particularised at [6] of Annexure C thereto, as admitted at [4.1] of Dr Al Muderis' reply to the amended defence, namely: the benefits and risks and potential adverse consequences of surgery (in this case, osseointegration surgery); the standard of care provided; the record of the doctor (here an orthopaedic surgeon); the treatment of vulnerable and disabled persons; the health and safety of members of society (especially those who are disabled or otherwise vulnerable); informed consent and a doctor's duty to warn; the intersection between fame or celebrity and medical practitioners; business and marketing tactics and health outcomes; conflicts of interest in the medical profession; the regulation of medical professionals; and the ability of persons with adverse consequences from surgery to have recourse or to have complaints considered and, more generally, Australia's health care system. All of the above are pleaded to be what the publications sued upon were concerned with. The conclusion I reach, including by reference to the conclusions I reach about the specific evidence detailed below, is that there was and is a substantial public interest in the identities of the confidential sources not being disclosed contrary to the promise given by Ms Grieve that this would not take place. 219 The fears expressed by all of the confidential sources, other than CS#16, considered in some detail above, carry some limited weight to the consideration favouring non-disclosure of their identities as provided for by s 126K(2)(a) in relation to a likely adverse effect upon them. I consider this carries greater weight in relation to the consideration provided for by s 126K(2)(b) going to the public interest in non-disclosure by reason of news media having the ability to access sources of facts, and being able to communicate facts and opinion to the public. That is so for two reasons. First, that evidence goes only to a likely adverse effect insofar as adverse consequences are feared, rather than a direct adverse effect in itself, so is necessarily of limited weight when considered in relation to s 126K(2)(a). Secondly, when that evidence of those fears is considered in relation to s 126K(2)(b), it goes directly to the issue of the public interest in s 126K(2)(b). That public interest is essentially akin to the informer aspect of public interest immunity, concerned with sources drying up. The fears conveyed by those sources (apart from CS#16) to Ms Grieve are a potent indicator of not just what was likely to happen in this case had the promise not been given, namely information not being provided, but a potent indicator of what would happen if the privilege created by the giving of that promise was overridden, being that the promise would likely become known, as being barren by reason of not being given effect to by a court. This is as weighty a consideration against disclosure as any of the factors outlined immediately above and is supportive of the public interest factors considered below for all of the confidential sources. The case advanced by Dr Al Muderis for a public interest in disclosure is therefore to be weighed against very significant considerations of public interest.

Public interest in non-disclosure as supported by confidential sources - s 126K(2)(b)

Non-disclosure public interest: CS#1 220 CS#1 told Ms Grieve that Dr Al Muderis has a bad reputation in the industry, and that it is an "open secret" that other surgeons have been concerned about his conduct for a long time and that perhaps the case does need media attention to make something happen. He told Ms Grieve that other stories on Dr Al Muderis did not go anywhere as Dr Al Muderis sent legal letters which shut down those stories. As noted above, Ms Grieve in her affidavit evidence recounted that, in her telephone call with CS#1 in October 2023, he stated that he would not have spoken with her without the promise of confidentiality, which the respondents identify as a factor in favour of the public interest in non-disclosure. I do not accept Dr Al Muderis' submission that this evidence is unsound, but rather regard it as consistent and credible in all the circumstances. 221 Ms Grieve states that she did not use information provided by CS#1 unless it was corroborated by written documentation, official reports, or multiple other confidential or on-the-record sources. Dr Al Muderis submits that on close analysis, much of the information from many of the sources was not, in fact, corroborated by non-confidential sources. For CS#1, Dr Al Muderis submitted that while Ms Grieve identified five other sources of information which corroborated the information provided to her by CS#1, none of these were on-the-record doctors who had seen Mr Urquhart himself. Dr Al Muderis submits that it follows that Ms Grieve "did not have any medical information about Mr Urquhart" from any other on-the-record source other than the expert witness, Dr Anstee, who was not in the relevant field, not being an orthopaedic surgeon, and could only comment on records shown to him by Ms Grieve. 222 I do not accept that Ms Grieve mischaracterised that the information provided to her by CS#1 was corroborated by other sources, those sources including Mr Urquhart himself. In cross-examination, Ms Grieve rejected the assertion that she had no corroborating material from another doctor about Mr Urquhart, stating that Dr Anstee had reviewed that patient's medical files, and she had seen some of his medical records which had then been examined by a number of medical professionals. I deal with this further at [268]. 223 CS#1 informed Ms Grieve about Mr Urquhart's case, and sent her a video of Mr Urquhart with maggots in his stoma (the skin opening at the base of the stump where the implant penetrates the skin). CS#1 also forwarded Ms Grieve a series of emails, and provided the contact details of three former patients of Dr Al Muderis as well as six medical professionals who worked with him. 224 Ms Grieve exhibited a redacted email dated 9 June 2022 in which CS#1 had replied to an email from Ms Grieve thanking him for information and indicating that she understands why he is guarded. CS#1 told Ms Grieve that he apologises if the doctors appear guarded but based on what has transpired in the past many of them feel like nothing will change and no one will really be held accountable, in context a clear enough reference to Dr Al Muderis. 225 Dr Al Muderis submits that Ms Grieve has disclosed so much information that CS#1 is readily identifiable as a named person. This factor can be seen to cut both ways with respect to an assessment of the public interest of revealing the sources. If Dr Al Muderis has identified the source by reference to other information provided by Ms Grieve, this both reduces the utility in keeping the sources confidential, but also in revealing their identities. In any event, this is of no moment as Ms Grieve did not, at any point, give evidence that the identity of CS#1 was the one proposed to her by Dr Al Muderis, instead maintaining that journalist privilege precluded answering. 226 Dr Al Muderis submits that CS#1 saw two patients who were front and centre in the truth defence, who were featured in the article and the subject of imputations as to what those patients were advised. He submits that this is relevant as CS#1 is, according to Dr Al Muderis, likely a doctor they have identified. Ms Grieve asserts in global, general, and conclusory terms that CS#1 is a reliable and credible source, but Dr Al Muderis submits he is unable to properly challenge that assertion. 227 Dr Al Muderis in oral submissions submitted that Ms Grieve's November Affidavit makes no sense and says that, as this is one of Ms Grieve's earlier sources, the evidence given that CS#1 was found through a Google search is unusual and something that Dr Al Muderis would want to test at trial (a consideration that I have already found to be of little or no weight). He submits that CS#1 is a significant source, as Ms Grieve spoke to him 10 to 15 times for a total of five to 10 hours, and that as there are no notes of those conversations in which he makes allegations about Dr Al Muderis, the content of those conversations cannot be tested. These submissions are in the nature of a "bootstraps" argument, which I have dealt with at [94]. 228 I am satisfied that the public interest considerations specific to CS#1 add some weight to the non-case specific public interest in non-disclosure for the purposes of s 126K(2)(b).

Non-disclosure public interest: CS#2 229 CS#2 said that many of his surgical peers harbour concerns about Dr Al Muderis but will not speak publicly because they know he is legally minded. CS#2 also told Ms Grieve he had only spoken to her because of the confidentiality agreement. 230 Dr Al Muderis submits that Ms Grieve has disclosed so much information that CS#2 is readily identifiable as a named doctor. He asserts that Ms Grieve refusing to concede that CS#2 was obviously a doctor he had identified was "denying the obvious" and that CS#2 knew that Ms Grieve was speaking to CS#1, which shows that third parties knew that a particular source had spoken to Ms Grieve. He submits that in those circumstances it is difficult to see how the identity of the confidential source could be confidential from first principles. I have dealt with that characterisation above at [109] but again find here that Ms Grieve was merely adhering to the claimed privilege in providing this answer in cross-examination, rather than denying the obvious. 231 Dr Al Muderis submits that the truth defence is also relevant for CS#2, because CS#2 expressed an opinion of a patient's treatment. He identifies CS#2 as a treating doctor, stating that his identity is relevant to defeasance of honest opinion about whether Ms Grieve honestly held the opinions, for truth and for a Jones v Dunkel inference that Dr Al Muderis anticipates requesting the Court in the trial to make. Each of these points are not made in convincing or weighty terms by way of any clear identification of how this is significant to his case overall, and are addressed globally below. I am satisfied that the public interest considerations specific to CS#2 add weight to the non-case specific public interest considered in s 126K(2)(b). I find that Dr Al Muderis has not demonstrated any reason as to why the public interest in s 126K(2) should weigh in favour of disclosure of the identity of CS#2.

Non-disclosure public interest: CS#3 232 According to Ms Grieve's evidence, CS#3 expressed doubt that the regulators would do anything to protect the patients, that the Australian Health Practitioner Regulation Agency (AHPRA) had been hopeless, and that there is a benefit to the media holding rogue surgeons and doctors to account. He said he knew of another instance of a surgeon who was deviating from medical standard and could not be held accountable by the Australian Medical Association but a media article had an impact 233 The respondents submitted that the media can play a useful role in holding practitioners to account where medical regulators are limited in their effectiveness and characterised the information provided by CS#3 as that of a general kind consistent with what other named sources said about Dr Al Muderis. That other general information was not published, particularly where not corroborated. 234 I am satisfied that the public interest considerations specific to CS#3 add weight to the non-case specific public interest referred to in s 126K(2)(b).

Non-disclosure public interest: CS#4 235 CS#4 told Ms Grieve that Dr Al Muderis has a very good media and public profile which makes it impossible to criticise him. The respondents point to this media profile and use of lawyers to limit criticism as supportive of the public interest in not requiring CS#4's identity to be disclosed. The respondents have also identified as relevant to the public interest that CS#4 said that he would only speak to Ms Grieve if his name were not associated with the story and if he was speaking off the record. 236 Dr Al Muderis submits that Ms Grieve has disclosed so much information that CS#4 is readily identifiable as a particular named doctor. Dr Al Muderis asserts that CS#4 is the only source to make detailed allegations about Cambodian patients, those patients being the subject of the truth defence as there is an imputation about Dr Al Muderis' treatment of patients in Cambodia, apparently being a reference to imputations [13.15] and [13.16]. This is therefore information Ms Grieve has used in the article and is relevant to all three defences of justification, public interest and honest opinion. 237 While Dr Al Muderis makes a sweeping statement that wherever a patient is mentioned by a confidential source, there is a truth component, as while patients have themselves given evidence of allegations of medical negligence, this turns on what the treating doctors say occurred at the time and what the experts say. This argument is not made out. Ms Grieve in her November Affidavit states that she spoke with at least two of the patients from Cambodia. Identified sources and other experts have given expert evidence in the primary proceeding as to the nature of the treatments from Dr Al Muderis, and so I do not accept that there would be substantially more to be gained by Dr Al Muderis in regards to the truth defence if CS#4's identity were revealed. Moreover, this is to be weighed against a greater adverse impact on disclosure on the public interest identified in s 126K(2)(b), especially for investigative journalism concerning the conduct of Australian doctors overseas. 238 I am satisfied that the public interest considerations specific to CS#4 add weight to the non-case specific public interest referred to in s 126K(2)(b).

Non-disclosure public interest: CS#6 239 CS#6 told Ms Grieve that he held concerns that the bodies responsible for regulating the medical profession were not doing anything about Dr Al Muderis and the public were at risk. This has been a consistent theme across a number of the confidential sources, which is cumulative in its effect, rather than corroborative in nature. Dr Al Muderis submits that Ms Grieve has disclosed so much information that CS#6 is readily identifiable as a named doctor. I consider this to be a weak specific factor favouring disclosure, as discussed at [225] above. 240 Accordingly, I am satisfied that the public interest considerations specific to this case add weight to the non-case specific public interest considered in the terms of s 126K(2)(b), and do not find that Dr Al Muderis has advanced any persuasive argument as to public interest in disclosure in relation to CS#6.

Non-disclosure public interest: CS#7 241 The respondent raised two matters which go to the public interest test. CS#7 expressed to Ms Grieve that Dr Al Muderis scares people off with litigation and he did not believe that Ms Grieve would be able to get a story published about Dr Al Muderis, and no one wants to go on the record about these things. CS#7 stated to Ms Grieve that he would not have spoken to her if he thought his name would come out, demonstrating the public interest considerations specific to CS#7 in the ability of the news media to access sources of facts. 242 Dr Al Muderis submits that Ms Grieve has disclosed so much information that CS#7 is readily identifiable as a named person. I have dealt with this kind of submission above at [225], and again here find that this is of no moment. 243 Dr Al Muderis characterised CS#7 as "controversial" as Ms Grieve declined to answer in cross-examination whether CS#7 is a doctor. Dr Al Muderis argues the way in which Ms Grieve has referred to CS#7 in her November Affidavit suggests that CS#7 is a doctor. Dr Al Muderis put to Ms Grieve in cross-examination that this is not the case, and that CS#7 has no medical qualifications despite her relying on him for medical opinions. Dr Al Muderis submitted in oral submissions that revealing CS#7's identity is not futile as he would then be able to cross-examine on this point where he is currently unable to do so due to the operation of the privilege. In oral submissions, the respondent conceded that Ms Grieve's affidavits should have been structured more precisely, so that CS#7 did not fall under a heading of "medical practitioners" but should have more accurately been "medical practitioners and healthcare workers". This amounts to a further implied concession that despite any representation to the contrary, CS#7 is not a medical practitioner. Senior counsel for the respondents stated on the record that CS#7 is not put forward as a doctor. The respondent submitted that a differently constructed cross-examination could occur on this issue at the primary trial. In all the circumstances, I do not accept that this is an issue of any substantial moment. 244 I am satisfied that the public interest specific to CS#7 add weight to the non-case specific public interest referred to in s 126K(2)(b), and that Dr Al Muderis has not displaced his onus to demonstrate the public interest in disclosure with regards to CS#7.

Non-disclosure public interest: CS#9 245 It was noted by Ms Grieve in her November Affidavit that CS#9 corroborated the evidence of other sources with regards to the Therapeutic Goods Administration recall process for medical devices, but that this information was not ultimately published. 246 Dr Al Muderis bears the overall onus of satisfying the Court that the public interest in disclosing the identity of CS#9 outweighs not only any identified adverse effect of disclosure, but also the public interest in the communication of facts and opinion to the public by the news media, per s 129K(2)(b). Dr Al Muderis did not advance any submissions or evidence speaking specifically to the public interest in CS#9's identity being disclosed, particularly in circumstances where the information he corroborated was not ultimately published, let alone advancing how any utility there may be in disclosure would outweigh the competing public interest in non-disclosure. As that onus has not really been sought to be discharged, Dr Al Muderis fails in meeting that onus for CS#9.

Non-disclosure public interest: CS#11 247 The respondents identified as relevant to the public interest in not requiring CS#11's identity to be disclosed that CS#11 told Ms Grieve that although he spoke to her because it was in the best interests of the community, he never would have spoken to her if it would mean his name would end up in the public domain. 248 Ms Grieve also deposed in her July Affidavit that CS#11 gave her information about patient X, who had been treated by Dr Al Muderis. It was put to Ms Grieve that CS#11 was a treating doctor of patient X, and that her notes about their conversation did not show that CS#11 had been required to remove any implant put in by Dr Al Muderis, as was stated in her affidavit. Ms Grieve agreed. 249 Dr Al Muderis submits that patient X is the subject of the truth defence in the amended defence, that CS#11 is patient X's treating doctor, and that he is not being called despite clearly being a substantial source of the information in relation to that patient. Dr Al Muderis advances that the direct reliance by the respondents on their amended defence and Ms Grieve's affidavits asserting these sources as reliable should be able to be tested fairly, and is a significant factor in favour of disclosure. 250 However, enlivening the discretion under s 126K(2) applies to each individual source, and Dr Al Muderis did not provide any reasons specific to why testing the information provided by CS#11 would be so critical to their case as to outweigh the public interest in the communication of facts and opinion to the public by the news media. This is particularly so as Dr Al Muderis did not identify which pleaded imputation and corresponding defence he asserts CS#11's identity or evidence is relevant to. As such it does not go to overarching effectiveness of his case, or his attack on the defences, but rather is confined to a marginal, perhaps incremental, and ill-defined forensic benefit of advancing a marginally better case. Accordingly, I am not satisfied this materially contributes to any public interest in disclosure. 251 Dr Al Muderis put to Ms Grieve in cross-examination that it was clear who CS#11 was based on a note made in contemporaneous notes taken by Ms Grieve during her conversation with CS#6, who had mentioned the first name of the doctor Dr Al Muderis has inferred is CS#11. It was further put to Ms Grieve that his is an uncommon first name and so CS#11 was likely to be the doctor identified by Dr Al Muderis with that first name. Ms Grieve disagreed with both propositions. Dr Al Muderis made the argument that CS#11's identity had been revealed and could be easily inferred by reference to exhibits tendered. This argument was based on the generalised submissions that some confidential source identities could be inferred from the information disclosed by the respondents, which in their submission, would count strongly against maintenance of privilege. Although Dr Al Muderis contends that CS#11 could be identified easily, I am not satisfied that any sufficient reasoning has been proffered as to how any confirmation of CS#11's asserted identity would outweigh the public interest as set out in s 126K(2)(b). It is not enough for Dr Al Muderis to show that there is no utility in non-disclosure of a source's identity, it must be demonstrated that there is some sufficient reasoning positively in favour of disclosure.

Non-disclosure public interest: CS#12 252 Dr Al Muderis submits that although Ms Grieve stated in her July Affidavit that CS#12 did not have any ulterior motive in speaking to her, this assertion will not be able to be tested in cross-examination if CS#12's identity is not disclosed. Dr Al Muderis also advances that one of the things that CS#12 talked about is patient selection for surgery, which is a key issue in the articles. 253 Again, s 126K(2) is essentially a weighing exercise, and Dr Al Muderis did not provide any reasons specific to why testing the information provided by CS#12 would be significant to their case so as to outweigh the public interest in the communication of facts and opinion to the public by the news media. Although Dr Al Muderis made reference to the information provided by CS#12 being a "key issue in the articles", he failed to identify which pleaded imputations this information would be key in establishing. Accordingly, I am not satisfied this argument should succeed. 254 Dr Al Muderis further submits that the identity of CS#12 can be easily inferred, at least by Dr Al Muderis, given the identifying information that has been provided by Ms Grieve in her notes and affidavits, thus reducing the utility of maintaining the confidentiality of the source. 255 As discussed above, although Dr Al Muderis made general submissions that some confidential sources' identities could be inferred from the information disclosed by the respondents, which in his submission, would count strongly against any public interest in the maintenance of the privilege, I am not satisfied that any sufficient reasoning has been proffered as to how the specific disclosure of CS#11's identity would outweigh the public interest as set out in s 126K(2)(b).

Non-disclosure public interest: CS#13 256 Dr Al Muderis argues that as CS#13 was happy to give Ms Grieve information from the outset without a promise of confidentiality until nearly 29 pages of text messages later, it would be difficult to suggest that the disclosure of CS#13's identity would have any negative effects on the public interest in the ability of the news media to access sources of information. 257 As previously discussed, I do not consider that a promise under s 126K(1) must be made at the very beginning of the conversation, and it is clear from messages between CS#13 and Ms Grieve that CS#13 was requesting confidentiality over the entirety of the conversation. The proposition that CS#13 was willing to speak to Ms Grieve for some time prior to requesting confidentiality is of limited significance given that what he disclosed was characterised by him as being secret. 258 Dr Al Muderis further asserts that disclosure of CS#13's identity is important to his case because there is an imputation against Dr Al Muderis about the mistreatment of patients in Iraq in the information he gave Ms Grieve, which the respondents maintain is true, despite no evidence being called to support this. However, if no evidence is adduced, then the defence would ordinarily fail, making this a poor advancement of the public interest in disclosure. 259 Section 126K(2) requires that I be satisfied that the public interest in disclosing CS#13's identity outweighs the public interest in the terms of s 126K(2)(b), and the onus to demonstrate this lies with Dr Al Muderis. In this case, Dr Al Muderis failed to discharge his onus in demonstrating the relevance of CS#13's information to any of the imputations pleaded by Dr Al Muderis or otherwise to a material advancement of his case, or his attack on the defences. Dr Al Muderis has not specified how disclosure of CS#13's identity would aid his interests at the trial of this proceeding, on the basis of relevant and admissible evidence, such that it would amount to a public interest that would outweigh the public interest in the communication of facts and opinion to the public by the news media. Accordingly, I am not satisfied that Dr Al Muderis has overcome the test in s 126K(2) so as to weigh in his favour enlivening the discretion.

Non-disclosure public interest: CS#14 260 Dr Al Muderis conducted substantial cross-examination and made submissions on the relevance of CS#14 in relation to the allegation of a patient with a breached humeral head, CS#14 being one of the medical practitioners involved in that patient's care. The patient's name, and the assertion that CS#14 was his treating doctor, was put to Ms Grieve which she refused to confirm or deny. Dr Al Muderis argues that the imputations by the patient are subject to the truth defence in this proceeding, and there is an issue in dispute in the proceeding as to whether or not the implant actually breached the humerus. They further submit that the relevant question is whether at the time of publication, CS#14 told Ms Grieve some things about a patient who is alleged to have a breached humeral head. 261 The respondent's counsel counter that CS#14 is not a central source in relation to that allegation. The patient is being called as a witness, and other witnesses will or have already given evidence and been cross-examined on the topic, so there is no prejudice to Dr Al Muderis is not disclosing the identity of CS#14. 262 Again, Dr Al Muderis's argument fails as it is central to the terms of s 126K(2) that CS#14's identity disclosure would advance a public interest which outweighs both any adverse effects to CS#14 and the public interest in the communication of facts and opinion to the public by the news media, which includes carrying the onus of showing that disclosure of CS#14's identity would assist Dr Al Muderis' case in some material way, particularly in circumstances where evidence regarding the breached humeral head is being adduced through other witnesses. Dr Al Muderis has also made the assertion that the patient's imputations are the subject of the truth defence, but failed to take the extra step to submit which imputations they refer to, or how disclosure of CS#14's identity would assist his case on those imputations or his case more generally, including his attack on the defences. 263 Dr Al Muderis also submitted to the Court that the identity of CS#14 could be easily inferred due to identifying information that has been provided by Ms Grieve in her notes and affidavits. As noted above, contrary to Dr Al Muderis' general submissions that some confidential sources' identities could be inferred, and this would weigh against maintenance of confidentiality, I am not satisfied that any sufficient reasoning has been proffered as to how disclosure of CS#14's identity specifically would be significant to the proceedings, or how it would outweigh the public interest as set out in s 126K(2)(b).

Non-disclosure public interest: CS#15 264 The respondents identified as relevant to the public interest in not requiring CS#15's identity to be disclosed that CS#15 told Ms Grieve he was very reluctant to speak unless it was strictly confidential. 265 No specific evidence or submissions were advanced by Dr Al Muderis as to why CS#15's identity would support Dr Al Muderis' case so as to outweigh the public interest in the communication of facts and opinion to the public by the news media.

Non-disclosure public interest: CS#16 266 Dr Al Muderis did not advance any reason as to why disclosure of CS#16's identity would support the interests of the running of Dr Al Muderis' proceedings, and relevantly, why this would outweigh the public interest in the terms of s 126K(2)(b). The onus of establishing that the public interest in disclosure of CS#16's identity outweighed the public interest in non-disclosure was accordingly not discharged.

Evidence and circumstances favouring disclosure: s 126K(2) 267 Much of the evidence that Dr Al Muderis points to in his post-evidence revised written submissions, and addresses orally, seeks to impugn the evidentiary basis said to be advanced by Ms Grieve for diminishing the significance of the confidential sources to this proceeding, by her assertion that much of the information she received from them was corroborated by information obtained from non-confidential sources. The submission made is that "close analysis" reveals that much of the information in question was not so corroborated. This asserted close analysis was communicated to the Court by way of a small number of examples. It is those submissions that therefore constitute Dr Al Muderis' case on this point, as supplemented by oral closing submissions, rather than any broader but uncommunicated analysis exercise. 268 In relation to CS#1, in her first affidavit at [63(c)], Ms Grieve describes that source criticising Dr Al Muderis' treatment of a particular patient, Mr Urquhart, who is a witness to be called by the respondents. This is followed by a description of a video of Mr Urquhart depicting a stoma and maggots, and an account of her further conversations with CS#1, accompanied by a summary of what he had told her. In her second affidavit, Ms Grieve refers back to 11 subparagraphs of her first affidavit, including [63(c)], in order to describe the use that she made of the information supplied and the steps that she took to corroborate it. In relation to [63(c)], Ms Grieve describes being put in touch with Mr Urquhart and being told about his treatment on the record, referring to his affidavit filed in the substantive proceeding. She also refers to speaking to Dr Anstee, a retired orthopaedic surgeon, about the treatment of Mr Urquhart. Dr Ansee has also filed an affidavit and is an expert witness for the respondents. She also spoke to a nurse formerly employed by Dr Al Muderis, Ms Shona Stewart, who is also a witness for the respondents. 269 Dr Al Muderis argues that none of these actions amount to relevant corroboration because it did not result in obtaining "medical information" so as to be corroborative of what CS#1 told her as to the treatment that Mr Urquhart had received from Dr Al Muderis. That is said to be so because Mr Urquhart is not a doctor, Dr Anstee did not see Mr Urquhart, Ms Stewart is not a doctor and the remaining two sources of corroboration are also confidential sources. 270 By confining corroboration to "medical information", Dr Al Muderis is creating a straw standard, in order to knock it down. What is relevant on the issue of corroboration is that it was directed to alternative sources of information as what had taken place in relation to Mr Urquhart obtained from disclosed sources relied upon in the publications who are also witnesses, including the patient himself. In those circumstances, the need for corroboration as to what took place is sufficient to diminish substantially this argument as to the need for the identity of CS#1 to be disclosed. 271 Dr Al Muderis advances a second criticism of Ms Grieve by reference to her evidence in her second affidavit addressing [67(d)] of her first affidavit because she refers to checking CS#1's information about Dr Al Muderis performing unnecessary surgery with "many doctors", including CS#3, CS#7, CS#11, CS#16 and Dr Andrew Ellis, formerly a confidential source whose identity has been revealed and who is now a witness for the respondents, but was still confidential at the time of publication. That distinction goes nowhere. What matters in terms of the disadvantage of non-disclosure of the identity of CS#1 is that there is a witness source for this allegation, even though it is not an imputation. It follows that this too weakens Dr Al Muderis' case for the disclosure of CS#1's identity. 272 The third category of criticism of Ms Grieve's evidence, leaving most of the 11 subparagraphs of her first affidavit as addressed in her second affidavit untouched except by general submissions, is that there are numerous references to Dr Saul Geffen, a rehabilitative physician who is an expert witness for the respondents, relied upon as an on-record source of some of the corroboration of information provided by confidential sources, including CS#1. The problem identified by Dr Al Muderis is that Dr Geffen was not spoken to by Ms Grieve until the brink of publication. That point is well enough taken, but even treating this asserted corroboration as being without weight, it does not go very far because so much of the rest of the corroboration identified by Ms Grieve is left untouched. 273 It follows that these sparse examples do not, as Dr Al Muderis asserts, seriously call into question the nature of the exercise of corroboration carried out by Ms Grieve. Nor is that a sufficient basis for the casting aside of her efforts as no more than an ex post facto justification of her position, as Dr Al Muderis urges, rather than a faithful account of what was actually on her mind at the time of publication as relevant to the public interest defence. Nor do I accept that these submissions and the evidence referred to come close to establishing the asserted centrality of the confidential sources to the publications, let alone to the defences directed to the pleaded imputations. 274 Dr Al Muderis submits that the interest in public disclosure outweighs any identified likely adverse effect from that disclosure taking place for any of the confidential sources. That is said to be so for a number of reasons. 275 First, it is said that it is difficult to assess what adverse effect there might be because of the lack of specificity in the evidence of the promises Ms Grieve relies upon. I am unable to agree with this submission. For most of the confidential sources, there was an account of the fears or concerns that were held by them if their identity is disclosed. While it is true that falls short of evidence that conduct giving rise to the fear expressed is itself likely, as John Dixon J pointed out in Madafferi at [118], a fear of a consequence is itself an adverse consequence, in that case the inherently unquantifiable risk to personal safety from mafia-type sources. Obviously, the nature of what is feared has a material bearing on the weight to be given to such a fear and thus as to the nature and extent of the adverse effect based on that fear. 276 It is important realise that the adverse effect aspect in s 126K(2)(a) is to be read with the public interest aspect in s 126K(2)(b), such that it is legitimate to focus on the impact this might have, or have had, in the case or class of the case at hand, and in particular on sources being unwilling to speak to journalists. I do not accept, as Dr Al Muderis submits, that a Court would not regard a fear of being sued (relevantly in defamation) as a real adverse effect for the purposes of s 126K(2)(a). It is not the point that such a suit might (or might well not) be lawfully pursued or legitimate. To the contrary, I consider that the risk of being sued, and/or a fear of that taking place within legal constraints are both significant adverse effects. A lawful consequence of that kind is more likely to take place than a criminal act, and accordingly a fear of that taking place is more readily able to be accepted as being genuinely expressed. 277 It is not significantly to the point that a lawyer's understanding of such things as limitation periods, relied upon by Dr Al Muderis to suggest that the risk of him commencing litigation was slight to non-existent, would support a conclusion that a risk is remote, or at least less than it might appear to a lay person. None of the confidential sources are suggested to be lawyers, let alone litigators. In any event this does not address other fears which I accept to be genuine and substantial, in particular fears of damage to the reputation of a source and adverse impacts on their income. 278 If the fear of being sued in defamation was, as a matter of principle, to be given no significant weight, as Dr Al Muderis urges, as a practical and realistic matter the operation of s 126K(2)(a) would be severely curtailed. I do not accept that is a reasonable way in which to read that provision. The risk of being sued in defamation was notoriously weaponised to deter sources before journalist privilege was enacted. Of course, the inevitably untested nature of such fear is an important consideration, which does operate to some extent to reduce its force, or at least to treat it with caution. But in this case, the fears that were expressed to Ms Grieve and conveyed by her in evidence have a sufficient ring of logic and truth to give them some real measure of weight, falling short of being determinative on their own, or even being especially weighty. But they go into the balancing exercise required. 279 Dr Al Muderis correctly points out and therefore properly concedes that the ability of the media to access sources of information is a matter of significant public interest. He submits that this case presents a number of difficulties with that general proposition. He places weight on an assertion that the conduct of Ms Grieve did not accord with codes of conduct published by the Media, Entertainment and Arts Alliance, and by the Nine Entertainment Code, including the requirement that making promises of confidentiality should be the exception rather than the rule, and that sources may have motives in providing information which could compromise a journalist, quoting from each code. However, that ideal standard necessarily depends upon the facts and circumstances of a particular case. The nature of the allegations made about Dr Al Muderis, and the kinds of information that needed to be obtained was always likely to test and limit the practical application of that ideal. I do not read those codes as presenting a dichotomy between proceeding without confidentiality or abandoning the pursuit of a particular investigation. Rather, a commendable ideal is presented to be followed as much as possible. 280 I accept Ms Grieve's evidence to the effect that she had a strong preference for having disclosed sources of information, but found it necessary to deploy the promise of not disclosing the identity of many sources, at least initially, in order to overcome fears, concerns or a general reluctance to speak. Some aspects of the investigation had to be abandoned when not enough on the record information was able to be obtained. Some allegations were not addressed in the publications. On all the evidence, I am of the view that adhering to this ideal was going to be difficult when it came to obtaining information about a prominent health professional such as Dr Al Muderis, especially for such serious allegations. It was not unreasonable to fear or even expect a severe reaction, with all that might entail. I note in this regard that a number of originally confidential sources have since agreed to be identified, and as already concluded, the remaining confidential sources are far from central to the defences relied upon by the respondents, and thus correspondingly, to the attack that Dr Al Muderis wishes to mount against them. 281 Dr Al Muderis also submits that the respondents have disclosed so much information about the sources that the risk of their identification is said to be inevitable in some cases. I accept that judgment calls have had to be made by the respondents, and that this may have meant that more information was given than may have been, with the benefit of hindsight, prudent. But trying to provide as much information as possible to Dr Al Muderis is an imperfect virtue, rather than a vice. I do not regard that as a reason not to give some real weight to the fears expressed to Ms Grieve. 282 The third point made by Dr Al Muderis is that the evidence is said to be not apt to demonstrate that the information obtained would not have been given without the giving of a promise of confidentiality. This submission is sought to be made good by a single example, referring to a volume of information provided before the promise was given to CS#13. That submission has a strong air of unreality about it, and seems to run directly contrary to the submission made about the journalist codes of conduct referred to above. If a journalist does not give a promise at the outset, and obtains information before that stops until a promise is given, that is no more than an example of trying to give effect to the preferred course, consistently with good practice and the codes of conduct. It does not present any compelling reason for thinking that the giving of a promise is not operative and effective in securing more information. Overall, I am satisfied that the giving of a promise to numerous sources was instrumental in obtaining information, or further information, including pursuing leads and obtaining on the record sources and documentary evidence.

Evaluating weight of the factors favouring disclosure for the purposes of s 126K(2) 283 Section 126K, paraphrasing the words of Lord Wilberforce in Granada at 1170, reproduced above at [20], means that journalists may enjoy immunity from the obligation to disclose when the statutory test in s 126K(1) is satisfied, and once established the privilege may only be withheld in the limited circumstances provided by s 126K(2), which may properly be described as applying only in exceptional cases by reason of the high threshold provided by s 126K(2)(a) and especially (b). It is not necessary to decide whether this goes so far as to be a "complete reversal" of the prior principle denying journalist privilege as described in Granada and the cases cited by the House of Lords, and affirmed by the High Court in Cojuangco. 284 Cojuangco, while not directly applying, also has some useful work to do by analogy in helping to identify the nature of the public interest that is required, by the chapeau to s 126K(2), to be established by Dr Al Muderis. The public interest in disclosure identified in the passage from Cojuangco at 354 reproduced above refers to the paramount interest in the administration of justice which requires that cases be tried by courts on the relevant and admissible evidence, which is elevated two sentences later to the status of a public interest in a litigant in securing a trial of the action brought on the basis of such evidence. 285 In Cojuangco, the High Court found that the defamatory imputations themselves were attributed to unnamed prominent sources, which endowed those imputations with an aura of authority, rendering the withholding of the identity of the sources "incongruous and unjust": Cojuangco at 358. It was this that made the imputations more damaging and significantly elevated the need for disclosure of the identity of the sources. By contrast, Dr Al Muderis relies upon references to what anonymous sources were reported to have said to Ms Grieve as reproduced at [16] above, but none of those references were clearly and sufficiently connected to defamatory imputations that were attributed to unnamed sources. At face value, they were aspects of the matter complained of more generally, such as there being concerns about Dr Al Muderis' approach to patient selection and after care and having an aggressive approach to surgery. While the publications as a whole are what the public interest and honest opinions are directed to, they will necessarily be most acute for the parts that are the basis for the pleaded imputations. 286 Dr Al Muderis submits that this case is similar to what took place in Cojuangco, but I am not satisfied it goes anywhere near as far as that case. In Cojuangco, the imputations themselves were directly supported by the confidential sources referred to in the publication. In this case, the defences to these imputations do not substantially depend upon confidential sources, and constitute inherently weak aspects of such defences in any event. But in any event, the linkages Dr Al Muderis relies upon between the particular imputations and the particular newspaper article extracts do not survive scrutiny. 287 The link between the selection of imputations and the selection of passages from the newspaper articles was explained by Dr Al Muderis' senior counsel in the course of oral submissions in reply, describing the above parts of the publications as part of the material relied upon to carry the pleaded imputations reproduced earlier in these reasons. An example to which my attention was directed was: (a) an accusation being made in last sentence of a passage from the SMH article and The Age article published on 19 September 2022 and reproduced at [23] of Mr Pullen's affidavit: He has also been accused of using high-pressure sales tactics to boost patient numbers; and and (b) the imputation of in fact having engaged in conduct of that nature at [28.5] of the statement of claim (imputation [28.5]), being an imputation which is drawn from a video published on The Age website on and from 22 September 2022 and reproduced at [22] of Mr Pullen's affidavit: Al Muderis employs high pressure sales tactics to the detriment of his patients in order to grow his business at all costs. 288 The juxtaposition of the article extract and imputation [28.5] does not work, because the article extract is from different publications by a different medium on a different date (i.e. the 19 September 2022 newspaper online articles) than the publication from which imputation [28.5] is drawn (being the 22 September 2022 website video). Other pleaded imputations to which my attention was directed in relation to the same article extract, being imputations [13.13], [13.14], [13.17] and [13.19], suffer from a similar vice in that they are drawn from the 60 Minutes program published the day before the newspaper articles and online articles, in a different medium and with a different corporate publisher. The remaining extracts from the newspaper articles were not linked in submissions to particular imputations, despite the fact that I expressly indicated the need for that to take place. 289 The final resting place for this argument as presented did not seem to rise much higher than an assertion that the purpose of the references to unnamed sources was to lend credibility to the entire publication. I am not satisfied that the reliance in the publications on the confidential sources identified by Dr Al Muderis is more than general, leading to the specific criticisms that form the basis for subset of the imputations sued upon that he relies upon in this dispute. I am not satisfied that they are of any readily apparent great moment to the pleaded imputations that he has also identified, nor that they did lend any substantial credibility to the entirety of the newspaper publications, nor any of the other publications if that is somehow possible. Correspondingly, the importance of the identification of the confidential sources for that information for the purposes of his case is far from self-evident. It was for Dr Al Muderis to identify with suitable precision the importance of revealing the identity of those sources to his case, so as to establish a substantial public interest in that taking place. He failed to do so. 290 The strongest remaining criticism made by Dr Al Muderis that he relies upon for this aspect of his argument, which also was not a part of any of the pleaded imputations, was that Dr Al Muderis' patient selection was "entirely inappropriate", but the source of that comment has since been identified and is therefore not among those presently under consideration. 291 The portions of the publications relied upon for a transcendent public interest in disclosure are therefore quite weak, before even turning next to the defences that Dr Al Muderis seeks to meet. 292 Expressed in this way, the weight of that public interest is dependent upon the significance of the identity of a particular source to the case at hand, including the identified issue it goes to. Merely being able to conduct a case in some better or even optimal way does not necessarily transcend Dr Al Muderis' private interest so as to advance any compelling public interest. The issue is one of a fair trial on his side of the ledger, not a perfect or optimal trial. 293 That is especially so if there is already a substantial and unimpeded basis for him to run his case, and the advantage to be gleaned by the disclosure of a given source has not been shown to be other than incremental or marginal. If that was not the case, then the generalised public interest such as that identified in Cojuangco at 354 would invariably prevail, and the important public interest identified in s 126K(2)(b) would be set to nought, leaving only the likelihood of an adverse effect on the source or someone else as a basis to maintain confidentiality. 294 Put another way, the public interest in disclosure needs not just to be shown to exist, but clearly must be shown to be sufficient to outweigh both the likely adverse effect on the relevant source (or anyone else) and the legislated and substantial public interest in the maintenance of an environment for the communication of facts and opinions to the public by the media and the ability of the media to access sources of facts. In any given case, such as the present, it may be significant in the assessment of that public interest against disclosure that the giving of a promise of confidentiality has been significant in actually advancing the ability of the party sued, such as the present respondents, and especially Ms Grieve, to access sources of information, and thereby be able to communicate facts and opinions so obtained to the public. 295 Substantially enhanced weight to denying disclosure may be established when the identified public interest is not just general, as the bare terms of s 126K(2) permit, but is as well a practical and significant example of that public interest being realised. The question that may be raised is whether the publication of the matters complained of, or some lesser version of them, would realistically have been possible but for the promise of confidentiality and the willingness to maintain it, even if the defence of the case brought against them would, most likely, have been stronger without that stance. 296 An important part of the evidence relied upon by the respondents is Ms Grieve's detailed account in her November Affidavit as to the use of the information she obtained from most of the confidential sources and the corroboration she sought and obtained for what she had been told, especially from sources whose identities are disclosed (and to a much lesser extent, from other confidential sources whose identities remain undisclosed). This is cross-referenced to the detail contained in her July Affidavit, organised by topics, which do not need to be repeated for present purposes. The point is that the respondents' case for non-disclosure does not simply rely upon a generalised account of the abstract value of being able to access sources of facts, and thereby being able to communicate facts and opinions to the public, even though s 126K(2) makes it clear by its terms that this may suffice. Rather, Ms Grieve's evidence detail how that has actually taken place.

Dr Al Muderis' arguments as to the public interest in disclosure: chapeau to s 126K(2) 297 I now turn to the Dr Al Muderis' main asserted detriment by reason of non-disclosure of the identities of the 13 confidential sources in advancing his attack on the defences of justification, honest opinion and public interest, going to the chapeau to s 126K(2).

Justification defence (substantial truth, s 25, Defamation Act) 298 The pleaded defence of justification (substantial truth), which is extensively particularised over some 135 pages in Schedule A of the amended defence, does not rely at all on any undisclosed source. The argument advanced as to the detriment Dr Al Muderis will suffer is conversely short and slender, to the point that it is conceded that if this was the only substantive defence being advanced, disclosure of the identity of the confidential sources would not have been sought. 299 Dr Al Muderis relies upon an assertion that he would be deprived of being able to make good a Jones v Dunkel submission about two doctors who are not to be called as witnesses, because he would not be in a position to know whether there is a basis for such a submission without knowing whether those doctors who are not to be called were undisclosed or confidential sources, noting that the respondents are not going to be calling any confidential sources. The substance of the argument seems to be that he needs to know whether an uncalled witness has a good reason for not being called so as to deny the drawing of an inference that they have not been called because they would not assist the respondents' case. 300 The first answer to this is that the value of such an inference in a case such as this is doubtful. The inference works best when the opposing party has a substantial case for drawing an inference in their favour, and no evidence has been called to resist or rebut it from someone who might be expected to give such evidence if it existed. The arguments Dr Al Muderis advances do not take that forensic step, but rather leave it at the level of generality, if not downright speculation. It is therefore not shown to be more than, at most, a slight disadvantage in the context of the breadth and detail of the defence being run by the respondents. I am not satisfied this could make any material difference to the effectiveness of the attack Dr Al Muderis can make on the justification defence. I therefore attach no real weight at all on this basis for there being a public interest in favour of disclosure.

Honest opinion defence (s 31, Defamation Act) 301 The pleaded defence of honest opinion, is, like the justification defence, substantially particularised over some 18 pages in Annexure B to the amended defence, with cross-references to the particulars in Annexure A (justification, s 25, substantial truth) and Annexure C (public interest, s 29A), none of which include references to confidential sources. For each publication or class of publication, there is pleaded an identification of each of the persons or entities asserted to have expressed the opinion relied upon. There is no pleaded reliance on any confidential source. 302 The argument advanced by Dr Al Muderis is that he pleads defeasance of the honest opinion defence and relies upon this turning on the information the respondents had at the time of publication and their belief in the truth of what they published. He asserts, without further explanation or argument, that the integrity and reliability of sources is a significant part of that enquiry, noting that the lack of identification of a source seems more likely to be a problem for the respondents. I am unable to be satisfied by such a sparse and undeveloped argument that the non-disclosure of the identity of any of the confidential sources will, in any material way, adversely affect his endeavour at defeasance of the honest opinion defence as advanced. I therefore attach no real weight to this basis for a public interest in disclosure.

Public interest (s 29A, Defamation Act) 303 Dr Al Muderis admits in his reply to the amended defence that the matters complained of were concerned with an issue or issues of public interest, leaving open the question of the reasonableness of the respondents holding any belief that the publications were themselves in the public interest. The particulars for the pleaded defence of public interest run over some 14 pages in Annexure C to the amended defence. That pleading does make reference to sources whose identities are not disclosed, but in a confined way. 304 Ms Grieve's affidavit evidence is that she made exhaustive enquiries about Dr Al Muderis after having first conducted searches for legal cases involving him. The particulars refer to Ms Grieve contacting and speaking to three named medical professionals who were familiar with Dr Al Muderis and his work. The entirety of the part of the defence that relies upon unnamed sources is in two limited parts in aggregate constituting less than a page as follows. The first is at part of [9(h)] of the particulars in Annexure C: Grieve subsequently made extensive enquiries about Al Muderis, comprising: (i) contacting and speaking to the following medical professionals who were familiar with Al Muderis and his work, comprising: 1. Dr E. John Anstee; 2. Associate Professor Elton Edwards; and 3. Professor Ian Harris; (ii) contacting and speaking to 26 further medical professionals who were familiar with Al Muderis and his work, comprising: 1. orthopaedic surgeons; 2. plastic and reconstructive surgeons; 3. general surgeons; 4. a foot and ankle surgeon; 5. an orthopaedic hip and knee surgeon; 6. an anaesthetist; 7. nurses; 8. prosthetists; 9. a rehab physician. 10. international osseointegration surgical specialists; and 11. an administrators of hospital department. The medical professionals who Grieve spoke to agreed to speak to her on the basis of a promise that she would not disclose their identity. The Respondents assert journalist privilege pursuant to section 126K of the Evidence Act 1995 (Cth) in relation to the identity of these medical professionals. (iii) contacting and speaking to 28 current and former patients of Al Muderis, comprising: 1. [List of 23 named patients]; … 23. … 24. Six patients who agreed to speak to Grieve on the basis of a promise that she would not disclose their identity. The Respondents assert journalist privilege pursuant to section 126K of the Evidence Act in relation to the identity of these medical professionals. … 305 The particulars then turn to a long list of steps Ms Grieve took, starting with contacting regulatory and industry bodies, and so on, none of which involve reliance on confidential sources. The conduct and beliefs of the other two individual respondents are particularised. The overall impression is that the reference to the confidential sources is more there for completeness, rather than any particular forensic value. In those circumstances, I am not satisfied that the unnamed health professionals and the unnamed patients, for which journalist privilege is claimed (and only challenged as to the health professionals), are of other than, at most, secondary importance to this defence, and therefore largely peripheral to the attack on this defence. That is diminished further by the fact that some of those who were unnamed have now agreed to be identified and have now had their identities disclosed. It has not been demonstrated to my satisfaction that those sources who remain unidentified will in any substantial or meaningful way advance the defence or are likely to be given much weight by the trial judge. This is another way of saying that they are, at best, of marginal significance to the effectiveness of the attack that Dr Al Muderis can mount on the public interest defence. I therefore attach limited weight for this being a public interest in favour of disclosure.

Conclusion 306 I am satisfied that the promise required by s 126K(1) was given by Ms Grieve to each of the 13 sources whose identity is sought by Dr Al Muderis, such that they are correctly described as confidential sources. Journalist privilege has been established for all 13 confidential sources. 307 I am not satisfied that it has been demonstrated that any public interest in the disclosure of evidence of the identity of any of the 13 confidential sources comes close to outweighing the combination of the likely adverse effect of that disclosure on a given source (except CS#16) and the public interest in the ability of the news media to access sources of facts, and in the communication of facts and opinions by the news media to the public. 308 As to the public interest in non-disclosure, I am satisfied that this prevails at the general level contemplated by s 126K(2), without reference to that public interest as it has played out in the particular circumstances of this case, largely because the weight of the public interest in disclosure was well short of compelling. The confidential sources were used in a restrained way, and not shown to bolster significantly the parts of the publications that gave rise to the pleaded imputations, quite unlike the situation in Cojuangco. This meant that general public interest in non-disclosure was more easily met. It follows that the discretion in s 126K(2) has not been enlivened because I have not reached the required state of satisfaction. 309 I am fortified in the conclusion I have reached about the public interest in non-disclosure provided by s 126K(2)(b) because, when that public interest is considered with a focus on the access to sources of facts that has taken place in this case, and in the communication of facts and opinions to the public by the publications that are sued upon, the public interest in non-disclosure is overwhelming and would have met and exceeded a far stronger public interest in disclosure than was present in this case. Whether key aspects of those publications were or were not substantially true, or expressions of honest opinion, or in the public interest, as the respondents contend, will be a matter for the trial judge to decide, without the benefit either way of the compulsory disclosure by the respondents of the identities of the 13 confidential sources. 310 Dr Al Muderis must pay the costs of the respondents of and incidental to litigating this dispute. I certify that the preceding three hundred and ten (310) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.

SCHEDULE OF PARTIES NSD 917 of 2022 Respondents Fourth Respondent: MS CHARLOTTE GRIEVE Fifth Respondent: MR TOM STEINFORT Sixth Respondent: MS NATALIE CLANCY