Al Muderis v Nine Network Australia Pty Limited

Counsel for the Respondents: Ms R Enbom KC and Ms C Roberts

Solicitor for the Respondents: Thomson Geer Lawyers

AND: NINE NETWORK AUSTRALIA PTY LIMITED First Respondent

FAIRFAX MEDIA PUBLICATIONS PTY LIMITED Second Respondent

THE AGE COMPANY PTY LIMITED (and others named in the Schedule) Third Respondent

order made by: ABRAHAM J DATE OF ORDER: 20 February 2024

1. Pursuant to r 24.15(1) of the Federal Court Rules 2011 (Cth), the two subpoenas filed on 9 October 2023 which are the subject of the respondents' interlocutory application dated 31 October 2023 be set aside.
2. In respect to the five subpoenas filed on 8 December 2023, for which leave to issue is sought but objected to, leave is not granted. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ABRAHAM J: 1 This is an interlocutory application brought by the respondents on 31 October 2023 seeking orders to set aside two subpoenas issued on 9 October 2023 to persons said by the applicant to be confidential sources of Charlotte Grieve, a journalist who is a respondent in this case. In addition, the respondents objected to the grant of leave to issue five further subpoenas which were filed by the applicant on 8 December 2023, also directed to persons each said by the applicant to be a confidential source. The documents sought by each subpoena are relevantly in the same terms. Each subpoena is directed to a health professional, none of whom are witnesses in the substantive proceedings. 2 Each subpoena originally sought production of: (1) "All documents evidencing communications with Charlotte Grieve" (category 1); (2) "All documents evidencing communications with [39 named persons] relating to Dr Munjed Al Muderis or osseointegration, from May 2022 to date" (category 2); and (3) "All documents evidencing communications with the firm Thomson Geer Lawyers, or any employee of that firm, in which you provide documents relating to Dr Munjed Al Muderis or any of the persons listed in [category 2]" (category 3). 3 Category 3 has since been abandoned. The applicant also narrowed category 2 to communications with a smaller number of identified persons. I approach these applications on that basis. 4 I note in this context that on 22 December 2023, Judicial Registrar Birchall, having heard argument in respect to a subpoena directed to Mitchell Grant (a witness in the substantive proceedings) in the same terms as those considered in these applications, made orders narrowing the scope of category 2 from 38 names to a more limited number. 5 In support of its application, the respondents read the affidavits of Sophie Meixner affirmed on 31 October 2023 and John-Paul Cashen sworn on 23 January 2024, and particular paragraphs in the affidavits of Charlotte Grieve sworn 28 July 2023 and 6 November 2023. 6 The applicant read the affidavit of Nicholas Pullen sworn on 30 January 2024. 7 Given the terms of the subpoena and arguments advanced, it is relevant to these applications to note that on 19 December 2023 the respondents' claim for journalist privilege under s 126K(1) of the Evidence Act 1995 (Cth) (Evidence Act) was upheld in respect to 13 confidential sources (which had been challenged), and the applicant's claim under s 126K(2) in relation to disclosure of those sources was dismissed: Al Muderis v Nine Network Australia Pty Limited [2023] FCA 1623 (Al Muderis) per Bromwich J. I note that although that argument was not heard until November 2023, the fact of the applicant's challenge to the claim for journalist privilege had been known from at least since the commencement of the substantive proceeding in September 2023. On the applicant's case on these applications, the subpoenas are directed to confidential sources (CS#) 1, 2, 4, 6, 7, 11 and 14 referred to in Al Muderis. 8 For the reasons below, the subpoenas issued on 9 October 2023 are set aside and leave to issue the five subpoenas filed on 8 December 2023 is refused.

Legal principles 9 The party who issues the subpoena carries the onus of establishing that they are entitled to the documents sought: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 (CFMEU) at [6]. 10 The principles governing the Court's power to set aside a subpoena for production are well established, and were summarised in Wong v Sklavos [2014] FCAFC 120; (2014) 319 ALR 378 (Wong) at [12] as follows: …The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38 at 52. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: Trade Practice Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76 at [39]-[40]; McHugh v Australian Jockey Club Limited [No 2] [2011] FCA 724 at [13]; McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785 at [35]; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 558 at [17]. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative (R v Barton (1981) 2 NSWLR 414 at 420), or that the material sought is reasonably likely to add in some way to the relevant evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 927), or that it be "on the cards" that the documents sought will materially assist the party at whose request the subpoena has been issued: Allister v The Queen (1984) 154 CLR 404 at 414; Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 at [13], [35]-[38]. 11 It follows that there must be a legitimate forensic purpose in seeking the documents for them to be the subject of a subpoena. They must have an apparent relevance in relation to the issues in the proceedings. The test for apparent relevance has been described as having a low threshold. A document or class of documents may satisfy that if it gives rise to a line of enquiry relevant to the issues before the trier of fact: Hooke v Bux Global Limited (No 2) [2018] FCA 836 at [38] citing Boase v Axis International Management Pty Ltd (No 3) [2012] WASC 498 at [11]. What is involved then is a question about reasonable likelihood, not possibility: Chief Executive Officer of Australian Transactions Reports and Analysis Centre v TAB Limited [2016] FCA 122 at [40] citing Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [6]. A subpoena cannot be used for the purpose of "fishing": CFMEU at [6]. To that end, the documents sought must be described with sufficient particularity, and the request must not be unduly burdensome or oppressive, or used as a substitute for discovery: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574-575. 12 Recently, in Seven Network (Operations) Limited v Fairfax Media Publication Pty Limited [2023] FCAFC 185, the passage from Wong quoted above was cited with approval at [36]. The Court explained at [35]-[38]: 35 …The use of the words "could possibly throw light on the issues which arise" cannot be taken literally or in isolation. The use by Beaumont J in Trade Practices Commission v Arnotts Ltd (No 2) of the word "possibly" in that phrase was not used in any speculative sense but is to be understood as conveying the notion that documents sought could reasonably be expected to throw light on some of the issues in the proceedings: Re Force Corp Pty Ltd (Receivers and Managers appointed) (in liq) [2018] NSWSC 896 at [24] (Gleeson JA); Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [48] (Bell P). That meaning is reinforced at [44] of the primary judge's reasoning by his Honour's statement that it was "on the cards" that the documents will throw light on the issues which arise. That colloquialism refers to the existence of a realistic and genuine prospect, as the Seven Parties submitted (T3.15-16; T15.22-23). 36 The primary judge also referred to the Full Court's decision in Wong v Sklavos at [12], the relevant passage being as follows: … 37 There is an ambiguity in that passage as to whether the words towards the beginning of the last sentence "essentially the same effect" are intended to mean that the three sets of terminology in the last sentence are all to the same effect, or whether those examples of terminology are to the same effect as the earlier concepts referred to, namely "a legitimate forensic purpose" and "apparent relevance". In our view, the latter interpretation is to be preferred. There is clearly a material difference between saying, on the one hand, that the documents sought have a bearing on an issue which is not unreal, fanciful or speculative or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, and, on the other hand, that the documents sought will materially assist the party at whose request the subpoena has been issued. The first two of those expressions do not require that the documents sought will materially assist the party requesting that the subpoena be issued, and are neutral on that question. In our view, the passage indicates that the fundamental principle is that the party issuing a subpoena must demonstrate that the subpoena has a legitimate forensic purpose, and that it may be set aside if it is cast in terms which require the production of documents which do not have apparent relevance to the issues in the case. 38 That principle is consistent with the reasoning of the NSW Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council, which provides authority for the following propositions: (a) the language of "tests" should be eschewed; whether a subpoena should be set aside depends on whether it involves an abuse of process, and it will be an abuse of process if it is not issued for a legitimate forensic purpose: Bell P at [60]-[61], with whom McCallum JA agreed at [98]; (b) it is not necessary to show that the documents subpoenaed will or will be likely to assist the case of the party that has issued the subpoena: Bell P at [57]-[58], Brereton JA at [86] and [96], McCallum JA at [98] and [100]; (c) it is sufficient to show that the subpoena can plausibly be seen to relate to an issue or issues in the proceedings or to cast light on such an issue, and the subpoena is not in other respects too vague or oppressive: Bell P at [57], McCallum JA at [98] and [100]; (d) put differently, it is sufficient to show that there is a reasonable basis for supposing that the material called for would likely add, in the end, in some way or another, to the relevant evidence in the case: Brereton JA at [89], with whom McCallum JA agreed at [100]; and (e) it is sufficient to show that the documents sought are apparently relevant in the sense that it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or that there is a reasonable basis beyond speculation that it is likely that the documents subpoenaed will so assist: Bell P at [65], with whom McCallum JA agreed at [98]. Both the Seven Parties and the Roberts-Smith Parties accept that there is no aspect of Bell P's reasoning that this Court should not follow (T10.12-15; T36.5-8). In our view, the appellants are correct in adopting that position, and we respectfully agree with the NSW Court of Appeal's reasoning in that case. 13 The respondents have the onus of establishing that the two subpoenas already issued be set aside, and the applicant has the onus of establishing that leave to issue the five further subpoenas be granted.

Submissions 14 In relation to category 1, the applicant submitted that the nature and integrity of the respondents' sources is an important matter in determining whether the defence in s 29A of the Defamation Act 2005 (NSW) (Defamation Act) is established, referring to s 29A(3)(e) of the Defamation Act, Murdoch v Private Media Pty Ltd [2022] FCA 1275 at [68], and Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223 at [367]-[374]. The applicant submitted that the identity of the sources is also important in the context of the matters themselves, which emphasise the number of sources and the fact that some are "high profile surgeons" to lend credence to the allegations about Dr Al Muderis. It was submitted that the respondents' view that they are not obliged to discover post-publication communications with relevant sources is plainly incorrect: some publications are still being published online, and an intervening act or additional information could result in the loss of the defence under s 29A. The applicant also contended that category 1 would capture primary medical records from the subpoena recipients, each of whom consulted with patients that are the subject of the justification defence. The applicant submitted that for those reasons the "sources of information used by the respondents in the preparation of the matters is an issue of central relevance in the proceedings". 15 The applicant submitted that "it is plainly on the cards" that each of the seven persons to whom the subpoenas are directed are confidential sources of Ms Grieve, and that their identities can be established from the documents produced by the respondents during discovery. It was contended that knowing whether that is so, and what exactly they told Ms Grieve, is directly relevant to the determination of the s 29A defence. The applicant also submitted that it is relevant that Ms Grieve admitted, on the eve of the hearing before Bromwich J, to destroying all her Facebook communications with Mr Hernandez and Mr Grant, as well as to destroying the recording of her interview with CS#2, the implication being that Ms Grieve may also have destroyed her communications with other sources. 16 The applicant limited his claim with respect to category 2 so that each subpoena recipient is required to produce all documents evidencing communications with nominated patients (which varied in relation to each subpoena) relating to Dr Al Muderis or osseointegration, from May 2022 to date. The applicant submitted that the patients in the reduced lists are patients whom each recipient treated or with whom they consulted. He submitted that there is a reasonable basis for inferring that if the recipient spoke to Ms Grieve about a patient's case, or provided the patient's medical records, the recipient would most likely have discussed the matter with the patient, to get the patient's consent to do so. 17 The respondents addressed the bases stated in the subpoenas as to the purpose of their issue and those identified in correspondence between the parties. The respondents submitted, inter alia, that the reasons identified in correspondence are different from those provided in the subpoenas themselves; and that the applicant's submissions make clear that the sole purpose of the seven subpoenas is to seek to identify some of Ms Grieve's confidential sources and to obtain documents recording exactly what the sources told her. To that end, the respondents submitted that Ms Grieve has discovered her communications with her confidential sources in redacted form and the applicant's application that the respondents "provide discovery" of the communications in unredacted form was dismissed by Bromwich J. 18 The respondents submitted that the subpoenas seek to go behind discovery, and that their purpose is directed to identifying the confidential sources in circumvention of Bromwich J's orders in Al Muderis. The respondents submitted that if that is the purpose of the subpoenas, each should be set aside as an abuse of process, referring to Jensen v Nationwide News Pty Ltd (No 6) [2018] WASC 415 (Jensen (No 6)) and Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 (Hancock). It was contended that Jensen (No 6) is not distinguishable on the facts, and that the applicant's submission that it is plainly wrong should be rejected. It was submitted that the reasoning of Quinlan CJ in Jensen (No 6) is sound and consistent with other authority, citing, inter alia, Hancock and Kizon v Palmer [1997] FCA 622; (1997) 77 FCR 261 (Kizon). The respondents submitted that the reasoning in these cases reflects the general principle that a subpoena should be set aside to prevent an abuse of the processes of the Court to prevent injustice. The respondents noted that the Court has a general power to control and supervise proceedings, including the power to take appropriate action to prevent injustice, and that the overriding principle governing the approach of the Court to interlocutory applications is that the Court should do whatever the interests of justice require in the circumstances of the case: citing, inter alia, P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] FCA 413; (2009) 255 ALR 466; Pivotel Satellite Pty Limited v Optus Mobile Pty Limited [2010] FCA 121; AEI Insurance Group Pty Ltd v Martin [2023] FCA 914. The respondents submitted that the applicant is seeking to use the subpoena process to obtain information that Bromwich J determined he should not have in these proceedings, and to that end, is asking the Court to make an order undermining another order made in these proceedings. 19 In addition, it was submitted that the subpoenas are oppressive and are also an abuse of process on that basis. The respondents submitted that the issue of a subpoena must not, in all the circumstances, be oppressive in terms of its impact on the recipient; and it must not be "seriously unfairly burdensome, prejudicial or damaging" and "productive of serious and unjustified trouble and harassment": citing McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 at [35]. It was submitted that on the applicant's case, the recipients are the confidential sources, and the applicant is seeking to use the subpoena process to compel them to identify themselves. This is in circumstances where Bromwich J has determined that Ms Grieve should not be compelled to identify her sources, after considering, inter alia, the adverse impact of disclosure on the sources. The respondents submitted that it would also be oppressive to issue the subpoenas if inspection of the documents produced would not be permitted, referring to Jensen (No 6) and passages from the reasons of Bromwich J in Al Muderis as to the issue of centrality of the sources to the case and public interest. The respondents contended that on the findings of Bromwich J, the public interest considerations (including the adverse impact on the alleged sources) far outweigh any legitimate forensic purpose in the applicant inspecting the documents sought. It was submitted that, given the overriding principle that the Court should do what the interests of justice require, the subpoenas be set aside or leave to issue be refused, as applicable. 20 Further, the respondents contended that the bases identified by the applicant as to category 1 having a legitimate forensic purpose are factually flawed. The respondents also made submissions directed to both category 1 and category 2, noting that there must be at least a reasonable basis beyond speculation that it is likely that the documents obtained would materially assist on an identified issue. To that end, the respondents submitted, inter alia, that if there was any intention to obtain medical records (which they contended was plainly not the case), the categories would be differently cast. They noted also that the categories have been cast in terms so broad that on that basis alone, they do not have a legitimate forensic purpose. 21 In response, the applicant submitted that the subpoenas are not seeking to go behind discovery. He made the submission that each subpoena calls for documents which have apparent relevance. If they result in the production of documents which demonstrate deficiencies in the respondent's discovery, that is nothing more than a by-product of the category's legitimate forensic purpose, not an abuse of process. 22 The applicant also submitted that the matter before Bromwich J concerned an objection by the respondents to being compelled themselves to disclose the names of confidential sources. It was contended that is a very different question from whether the s 126K privilege could be the basis for an objection to the production of any otherwise relevant documents in the hands of the recipients who, on the applicant's case, are the confidential sources. The applicant submitted that on the plain wording of s 126K, nothing permits anyone other than the journalist or his or her employer to object to the production of documents on the grounds that it would disclose the identity of a source. Moreover, the terms of s 126K do not provide any basis for the journalist or his or her employer to object to a disclosure requirement addressed to a third party. This, it was submitted, is consistent with the position under the common law newspaper rule: citing Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241 (Wran) at 259. While it was acknowledged that "[a]n applicant cannot simply cast subpoenas out at random on the mere suspicion that the recipients might be sources", the applicant made the submission that he has a "non-speculative basis" for supposing that the recipients hold relevant documents. 23 The applicant submitted that Hancock does not assist the respondents and that Jensen (No 6) is distinguishable. He made the submission that applying Jensen (No 6) in the context of s 126K would be plainly wrong, as it would expand the scope of the privilege in a way not justified by the text of s 126K(1). The applicant submitted that if Parliament had intended that journalists should be able to object to disclosure requirements addressed to third parties, or that sources themselves should be able to object, this would have been made explicit in the statutory text. The fact that the legislation does not provide for such obvious procedural possibilities, it was submitted, should be seen not as an oversight, but as a deliberate policy choice. This was said to be supported by the fact that s 126K was enacted against the background of the common law newspaper rule which did not prevent the plaintiff from issuing a subpoena to third parties to ascertain information about sources: Wran at 259. The applicant made the submission that this makes it all the more likely that any Parliamentary intention that the statutory privilege operate differently from the common law rule in this sense would have been made explicit in the text. 24 The applicant submitted that although it is true that s 126K(1) reflects a general public policy in favour of the protection of journalists' confidential sources, that must be balanced against the equally important public interest in the administration of justice and litigants' right to have their causes of action determined on the basis of available relevant evidence: citing John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; (1988) 165 CLR 346 at 354; Madafferi v The Age Company Ltd [2015] VSC 687; (2015) 50 VR 492 at [49]-[51]. Where the journalist themselves has disclosed so much information that the source's identity is ascertainable, the weight that can properly be given to the public interest in the protection of confidential sources, it was submitted, is reduced.

Consideration 25 It is appropriate to address some preliminary observations at the outset, before turning to the issue of abuse of process, and the bases on which the arguments were advanced. 26 First, to state the obvious, this Court has already made a ruling on the application of s 126K in relation to Ms Grieve's confidential sources. The subpoenas, on the applicant's case, are directed to persons who Bromwich J concluded have been promised confidentiality and have genuinely held concerns for requiring confidentiality as explained to Ms Grieve (the evidence being accepted by Bromwich J). The applicant also did not satisfy Bromwich J to order disclosure of the confidential sources' identities (on the basis that the applicant did not establish that the public interest in disclosure outweighed any likely adverse effect on the informant or other person, the public interest in the communication of facts and opinion to the public by news media, as well as in the ability of the news media to access sources of facts). I note that before Bromwich J, the applicant bore the onus of establishing that the journalist privilege applying to these 13 confidential sources should be overridden. This was not established. Given his Honour's orders upholding the respondents' claim for journalist privilege in respect to the 13 confidential sources challenged, the promise of confidentiality remains operative. I note that the applicant's case before Bromwich J was also that he knew the identity of some of the confidential sources but as his Honour observed, the applicant did not submit that the journalist privilege had been waived or displaced by the journalist in any way. 27 These applications are not to be considered in a vacuum. Rather, these subpoenas, and the applicant's submissions in support, are advanced in the context where a ruling has been made by this Court that journalist privilege applies in relation to the confidential sources, which, on the applicant's case, includes the seven recipients of these subpoenas. 28 Second, the applicant's written submissions reflect that these subpoenas are squarely directed to knowing or confirming whether the applicant's belief as to the identities of seven of the confidential sources is correct (and to obtain documents recording what they told Ms Grieve). Category 1 seeks communications between the recipient and Ms Grieve; category 2, between the recipient and nominated patients. Little was said in support of category 2, but the applicant's written submissions reflect it is premised on the basis that the recipient is a source of Ms Grieve and is therefore likely to have discussed the matter with the patient to obtain consent before speaking about them to Ms Grieve. That is the only basis advanced, and it reflects the nature of the communications sought. Put another way, (on the applicant's case) any apparent relevance is relation to each subpoena is dependent on the recipient being a confidential source of Ms Grieve. No apparent relevance of the communications independent of that has been identified. 29 Although the applicant repeatedly submitted during the hearing of these applications that these subpoenas are not directed to revealing the identity of the confidential sources, as that is already known by him, that is a distinction without a difference. It downplays the significance of the identity of the persons to his case in respect to these applications. The distinction is inconsistent with the applicant's written submissions at AS [19] (emphasis added): …In light of the details disclosed in Ms Grieve's affidavit and notes and the respondents' discovery, it is plainly on the cards that each of the subpoena recipients was a source. Knowing whether that is so, and what exactly they told her, is directly relevant to the determination of the s 29A defence for the reasons given above. 30 That submission makes plain that confirmation of the belief as to identity is that to which the subpoenas are directed. Despite repeatedly submitting that the subpoenas are not concerned with the identity of the sources, the applicant did ultimately accept that they were concerned with confirming his belief as to the identity of the sources. That the applicant is also seeking communications (including that which have been denied by Bromwich J) does not alter the purpose of the subpoenas, as the production of the communications is the means by which the recipient would be confirmed as a confidential source. As Bromwich J observed at [56] of Al Muderis, "[t]here 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". That is so regardless of the strength of the applicant's belief. I note that the bases of the applicant's belief regarding the identity of the sources as being correct are challenged. 31 The applicant's submission in support of the issue of the subpoenas is underpinned by circular reasoning. On the applicant's case, the apparent relevance of the documents sought by each subpoena is based on the assertion that the recipient is a source of Ms Grieve, which on the applicant's case, are CS# 1, 2, 4, 6, 7, 11 and 14 referred to in Al Muderis. However, also on the applicant's case, it is the production of the documents sought which confirms the identity of the recipients as confidential sources. In other words, the documents sought are said to have apparent relevance because the recipients are these confidential sources; but the production of the documents is required to confirm that is so. 32 As referred to above, the applicant's case before Bromwich J was also that he knew the identity of some of the confidential sources: see for example Al Muderis at [55]-[58]. Indeed, his submission on these applications - that because the identities of some of the confidential sources are otherwise ascertainable, the weight to be given to the public interest in protection of the confidential sources is reduced - is the same argument as that advanced before Bromwich J: see Al Muderis at [55]. This submission ignores the need for confirmation of identity, the ruling by Bromwich J (and the effect thereof), and that the question on these applications is whether the issue of the subpoenas is an abuse of process. 33 Third, the documents produced to the applicant in the discovery process by Ms Grieve were subject to redactions based on a claim for journalist privilege, which was upheld. Documents sought by the applicant in the s 126K argument before Bromwich J were the unredacted versions of the documents discovered (which included communications between Ms Grieve and the confidential sources). That application was rejected. Having not succeeded before Bromwich J, the applicant seeks documents through this process which (on the applicant's case) will reveal the identity of seven of the confidential sources. The subpoenas encompass the documents refused by Bromwich J, being unredacted copies of communications in possession of the recipients that were provided to the applicant in the discovery process. The existence of any other documents sought in either category is entirely speculative. 34 Fourth, based on the orders made by Bromwich J, as currently stands, when Ms Grieve gives evidence in the substantive proceeding, she is not required to answer any questions which will identify her confidential sources (by claiming journalist privilege, as she did in the s 126K hearing, in relation to each relevant question). 35 Fifth, the recipients of the subpoenas are not witnesses in these proceedings. This can be contrasted with the circumstances considered in Roberts-Smith v Fairfax Media Publications Pty Limited (No 3) [2020] FCA 2 and Roberts-Smith v Fairfax Media Publications Pty Limited (No 27) [2022] FCA 79 (Roberts-Smith (No 27)) where the source was a witness and was asked in cross-examination about his contact with the journalist, following which production of communications between the journalist and witness was ordered (which had, before the hearing, been denied to the applicant by virtue of s 126K). A relevant change of circumstance involved reconsidering the earlier ruling. The applicant in this case submitted that he could ask other witnesses questions which would disclose the identity of a confidential source. However, a submission which postulates what may happen in the hearing does not assist resolution of the issues on these applications. This case must be determined on the circumstances that currently exist. In any event, any such questions, if they include content of any conversation, may be seeking hearsay responses. Nevertheless, any such question can only be considered if, and when, it is asked. 36 In the same vein, the applicant submitted that issuing a subpoena to these recipients is no different from them being asked in cross-examination, if they were called to give evidence, whether they spoke to Ms Grieve, because s 126K does not apply to the source: referring to Roberts-Smith (No 27). It may be accepted that a witness may be asked in cross-examination, if relevant, about any communication with a journalist, as occurred in Roberts-Smith (No 27). Any answer would be evidence in the proceedings, unlike documents produced on the issue of a subpoena. However, a subpoena can only be issued with leave of the Court, and only if certain criteria are established. These recipients are not to be called to give evidence and nor is this an application under s 126K. The issue is not what might occur in another circumstance, but rather whether, in the circumstances as they currently exist, leave ought to be granted to issue the subpoenas (or whether the subpoenas ought to be set aside if already issued) on the basis that to do so is an abuse of process. 37 Sixth, the applicant's submission as to the basis of the subpoenas is premised on the assertion that the sources used by Ms Grieve are of central relevance to the proceedings. I do not agree. Bromwich J concluded at [273] of Al Muderis: 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. 38 Bromwich J repeated that conclusion at [280]: …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. 39 In relation to the s 29A defence, Bromwich J concluded at [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. 40 Further, at [308], Bromwich J stated: 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… 41 At [309], Bromwich J concluded: …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… 42 Statements to the same effect were also made by Bromwich J at [237], [250], [263], [300], and [302]. Although the applicant, when asked about those findings, submitted that they are plainly wrong, he advanced no material or submission in support. It is not suggested that there has been any change in circumstances. Bromwich J's decision has not been appealed. The applicant ultimately accepted that there is no reason why I should not, for the purpose of these applications, have regard to the findings of Bromwich J. There is no basis, for present purposes, not to act on those conclusions. 43 Although not articulated in the written submissions, the applicant submitted during the hearing that the justification defence (substantial truth) in s 25 of the Defamation Act was also relevant to these applications, primarily relating to the documents sought by category 2. That submission was not developed on these applications; it being left as a general assertion. However, in respect to the substantial truth defence, Bromwich J observed at [298] of Al Muderis that: 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. 44 At [299]-[300] of Al Muderis, Bromwich J addressed the argument advanced that the applicant would be deprived of being able to make good a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 submission about two doctors who are not to be called as witnesses, concluding at [300] that: 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. 45 I note that the two examples given in the applicant's submission to illustrate the significance of the identity of the confidential sources (at AS [11]-[12]) - being [5] and [63]-[64] of the Sydney Morning Herald article published on 19 September 2022 - are amongst the examples given to Bromwich J: Al Muderis at [16]. His Honour proceeded on the basis that the examples given (recited at [16] of Al Muderis) constituted the parts of the publications that the applicant considered to best advance his case, noting that nonetheless his Honour had considered the rest of the publications: Al Muderis at [17]. His Honour's conclusions referred to above were made in that context. Further, in reaching his conclusion as to the significance of revealing the identity of the confidential sources to the applicant's case, Bromwich J considered the nature of each of the defences relied on, including ss 25 and 29A of the Defamation Act. I note Bromwich J did make observations at [31] of Al Muderis as to the possible impact of his decision on the respondents' case. 46 Seventh, the applicant's submission that the subpoena would capture primary medical records from the recipients who have consulted with patients that are the subject of the justification defence in support of their issue, does not assist. Plainly, these subpoenas are not directed to obtaining such medical records. Each category refers to "documents evidencing communications" between persons, with no reference to medical records. This is also apparent from the fact the communications in category 2 are directed to communications about Dr Al Muderis. It does not advance the applicant's case that, as a side wind, some medical records might be caught. To the contrary, if such records were what was sought, they would be the focus of the subpoena. This submission, which appears to attempt to bolster the basis of the subpoenas, cannot overcome their obvious purpose. 47 Eighth, in so far as the applicant relies on the deletion of documents, this issue was addressed in the hearing before Bromwich J, and findings were made. The applicant overstates the position, stating there is a need to ensure that no other documents from individuals who appear to be a source have been destroyed. Ms Grieve disclosed to the applicant's lawyers on 9 November 2023 that she had deleted Facebook messages with Mr Hernandez and Mr Grant prior to the publications. The evidence is that these were the only messages deleted, and Mr Hernandez and Mr Grant have since been issued a subpoena for those communications. The email of 9 November 2023 also records that Ms Grieve had deleted two recordings, one in relation to a patient (not a confidential source) and one in relation to CS#2. 48 As Bromwich J records at [117] of Al Muderis, Ms Grieve gave evidence 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 as it was no longer necessary after transcription. Ms Grieve explained she was being careful about confidentiality, that this was not a complete transcription, and hence does not contain reference to the promise. Bromwich J accepted her evidence: Al Muderis at [120]; and see also Bromwich J's comments at [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… 49 Although I will need to make my own findings as to Ms Grieve's evidence in the substantive hearing, as noted above, the applicant accepted that is no reason why I should not, for the purpose of these applications, have regard to the findings of Bromwich J.

Abuse of process 50 I turn now to the question of whether the issue of the subpoenas is an abuse of process, given that was the primary submission advanced by the respondents. In summary, the respondents make this submission on the bases that the subpoenas are inconsistent with the orders of Bromwich J and therefore bring the administration of justice into disrepute; that the subpoenas are oppressive given the circumstances of the recipients; and that it would be an abuse to issue the subpoenas if inspection would not be allowed because of Bromwich J's ruling. 51 As explained above, the applicant's submissions demonstrate that these subpoenas are squarely directed to revealing the identity of certain confidential sources (and based on that, any communications as to what they told Ms Grieve). That is plainly the purpose of both category 1 and category 2, given the submissions advanced by the applicant. Each category is directed to establishing the very facts which Bromwich J refused (on the applicant's application) to allow to be disclosed by Ms Grieve. In that circumstance, the respondents submitted that each of the subpoenas is an abuse of the Court's process (and should either be struck out, or leave to issue should be refused, as applicable). 52 The power of a Court to protect its own processes by preventing an abuse of process is well established. Quinlan CJ accurately summarised those principles in Jensen (No 6). The applicant does not dispute that a subpoena can be set aside or that leave to issue can be refused if issuing the subpoena would be an abuse of the Court's process. Rather, the applicant's argument is that this case does not fall within that concept. 53 The varied circumstances in which the use of the Court's processes will amount to an abuse do not lend themselves to exhaustive statement: UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 (UBS AG) at [1]. The reason why that is so is explained in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 (Batistatos) where Gleeson CJ, Gummow, Hayne and Crennan JJ refer at [14]-[15] to Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 (Ridgeway) at 74-75, and Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 (Rogers) at 286. 54 As Gaudron J explained in Ridgeway at 75 (citations omitted): …the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to "defined and closed categories" because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. 55 This passage was recently cited with approval by Kiefel CJ, Gageler and Jagot JJ in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (GLJ) at [26] and [47]. Accordingly, the majority in GLJ determined whether the proceedings there in issue were an abuse of process by considering that concept in the context of the understanding of a fair trial in respect to child abuse in current times (the abuse allegation there relating to events over fifty years before). 56 In Rogers, McHugh J observed that an abuse of process will usually fall into one of three categories: (1) the Court's procedures are invoked for an illegitimate purpose; (2) the use of the Court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the Court's procedures would bring the administration of justice into disrepute: Rogers at 286; Batistatos at [15]; PNJ v The Queen [2009] HCA 6; (2009) 252 ALR 612 at [3]. In UBS AG, the Court described that either of two conditions enlivens the power: where the use of the Court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute: UBS AG at [1]. 57 In that context, it is appropriate to turn to Jensen (No 6), where Quinlan CJ considered a subpoena issued in very similar circumstances as here. 58 The protection provisions for journalists contained in s 20G and ss 20I to 20M of the Evidence Act 1906 (WA) (Shield Laws) (WA Evidence Act) considered in Jensen (No 6) are to the same effect as s 126K of the Evidence Act. The parties accepted there was no relevant difference. 59 In Jensen (No 6), the journalist's communications with his three confidential sources were discovered and produced in redacted form to remove identifying information. Prior to trial, the plaintiff applied to inspect the documents in unredacted form: Jensen v Nationwide News Pty Ltd (No 5) [2018] WASC 360 (Jenson (No 5)) at [5]. That application was refused. In Jensen (No 5) Tottle J concluded at [114(e)]: The likely effect of the identifying evidence, including the likelihood of harm, and the nature and extent of harm that would be caused to the informant or any other person: The most likely and in my view most significant, effect of the identifying evidence is that it would discourage members of the community from providing information on a confidential basis to journalists in general. Thus, in my view, disclosure would undermine the public interest in the communication of facts and opinions by the public to news media. I am also persuaded that the identifying evidence would have a negative or damaging effect on each of the sources. An inference to that effect arises from the evidence that the second defendant gave promises not to disclose the identity of the sources and such promises would be unnecessary if the sources were not concerned about potential negative effects on them if their identities were known. The drawing of that inference is strengthened by the second defendant's evidence that while he could not say with any certainty exactly what would happen if the identities of his sources were revealed, "it is likely that they would each lose trust within their respective fields". Finally, I accept that disclosure of the identities of the sources would damage the second defendant's reputation as a journalist. I consider that potential sources would be concerned about disclosing information to him on a confidential basis in the future if a direction was given and that this would make it more difficult for him to effectively report on matters of public interest. 60 Tottle J further concluded at [135] (citations ommited): Having concluded that the defendants should not be compelled at trial to disclose the identities of sources A, B and C, for the court to order at an interlocutory stage that the plaintiff be allowed to inspect unredacted documents that would have the effect of disclosing the identifying information to the plaintiff, would undermine the protection afforded to the identifying evidence by the [Shield Laws'] protection provisions and would amount to an abuse of process… 61 Following Tottle J's ruling, the plaintiff then issued a subpoena to Telstra for records which included incoming and outgoing text messages and calls from the journalist's telephone number: Jensen (No 6) at [10]-[12]. The defendants sought to set aside the subpoena primarily on the basis that revealing confidential sources would circumvent the decision in Jensen (No 5) and undermine the important protections provided by the Shield Laws: Jensen (No 6) at [13]. Quinlan CJ, having recited the plaintiff's submission at to the basis of the subpoena, concluded at [23] of Jenson (No 6): In my view, many of the purposes identified by the plaintiff as being legitimate forensic purposes for the issue of the subpoena may properly be regarded as secondary to the purpose of principal significance, namely the identification of Source A and Source C. That purpose (and the desire to thwart it) is, of course, the motivating force behind the defendants' application. 62 The Court observed, having considered the legal principles in relation to establishing an abuse of process at [27]-[41], that even if the subpoena was not an abuse, there is a separate question of whether the Court, in its discretion, should allow the inspection of the documents: Jensen (No 6) at [42]. 63 The respondents in these proceedings accurately summarised Quinlan CJ's conclusions as follows: (1) to allow the plaintiff to access the telephone records of the journalist under subpoena so as to identify a confidential source is capable of being characterised as an abuse of process: Jensen (No 6) at [58]-[75]; (2) had the only purpose of the subpoena been to reveal the identity of confidential sources, a very real question would have arisen as to whether the subpoena should be set aside as an abuse of process: Jensen (No 6) at [76]; (3) the subpoena had other genuine legitimate forensic purposes beyond the purpose of identifying confidential sources and, for that reason, it would not be set aside as an abuse of process: Jensen (No 6) at [77]-[79]; (4) however, it was an appropriate exercise of discretion not to permit the plaintiff to inspect the documents produced. His Honour agreed with Tottle J's finding that the plaintiff's case is not impaired to a material extent by not knowing the identity of the sources. The matters of public interest identified by Tottle J in the non-disclosure of the identity of the sources outweighed any legitimate forensic purpose in the plaintiff inspecting the documents: Jensen (No 6) at [80]-[88]. 64 That said, it is helpful to consider some of the reasoning underpinning the conclusions in more detail. 65 The applicant in this case submitted that Jenson (No 6) is not analogous to the present circumstances, because Quinlan CJ was influenced by the fact that even though Telstra was a third party, the documents sought were the journalist's own telephone records. It may be accepted that in discussing why access to the second defendant's telephone records to identify Source A could be characterised as an abuse of process, Quinlan CJ referred to the fact that it was the journalist's own records which were sought, notwithstanding that the subpoena was issued to Telstra: Jenson (No 6) at [67]-[68], [75]. However, the reasoning was not so confined. Quinlan CJ, referring particularly to [135] and [114(e)] of Jensen (No 5), recited above, concluded at [73] of Jenson (No 6): Having regard to these findings, in my view, to allow the plaintiff to obtain precisely the same identifying evidence as that which was refused by Tottle J, by the alternative means of the second defendant's telephone records with Telstra, has the real potential to bring the administration of justice into disrepute. In my view to so allow would be likely to give rise to the perception that Tottle J's orders can, in substance, be undermined. 66 Quinlan CJ referred to UBS AG at [59] (Kiefel CJ, Bell and Keane JJ) and [151] (Gordon J) to illustrate the relevance of perception in the assessment of abuse of process: Jenson (No 6) at [73]. 67 Further, at [74] of Jenson (No 6), Quinlan CJ rejected the plaintiff's submission that the defendants' argument would require an enormous extension of the newspaper rule and the statutory provisions and would be creating new law contrary to the face of the text and obvious policy of the WA Evidence Act. His Honour's conclusion at [75] was that it was a "short step" to say the records should be the subject of protection in circumstances where Tottle J had already found that to compel inspection from the journalist would amount to an abuse of process. 68 The plaintiff in Jensen (No 6) relied, inter alia, on Wran in submitting that it is not an abuse of process to subpoena a third party to reveal a confidential source of a journalist. Quinlan CJ addressed this argument at [55]-[62]: 55 I accept, in accordance with the approach of Hunt J in Wran, that the newspaper rule, properly understood, could not operate so as to prevent a subpoena being issued to obtain documents from a third party that would reveal a confidential source, notwithstanding that the rule might prevent pre-trial disclosure of the source by the news media defendant. 56 In my view, however, it is significant that in Wran, Hunt J was dealing only with the newspaper rule which, as his Honour identified in the passage reproduced above, was a rule of practice of limited application and did not create a privilege on the part of a journalist or media organisation. At the time that Wran was decided there was, relevantly, no other principle of law reflecting a public interest in the protection of journalists' confidential sources. 57 There has since been a substantial shift in the law created by the Shield Laws. 58 It is now the case that, subject to the Court making a contrary direction under s 20J, s 20I of the Evidence Act prevents a journalist or a person for whom the journalist was working from being compellable to give evidence that would disclose the identity of an informant, where the journalist has promised the informant not to disclose the informant's identity. Those statutory provisions do create a form of privilege; a privilege that is intended to reflect important public interests. 59 The purpose of, and the public interest reflected in, s 20I is, in my view, evident from the terms of the legislation itself. It is the public interest in the communication of facts and opinions by the public to news media. While it is not necessary, in my view, to go to the second reading speech to discern that public interest, as both parties referred to it, I note that the second reading speech expressly refers to: … the public interest of preserving appropriate confidentiality while recognising that journalists play a vital role in ensuring the free flow of facts and information to the public. 60 The direct protection provided by s 20I, of course, applies only to journalists or the persons for whom a journalist was working. It is not a protection that, in terms, applies to other persons. Nor, indeed, is it a protection that, in terms, applies outside of the actual giving of evidence. 61 The direct application of the Shield Laws to a journalist (or their employer) giving evidence, does not, however, exhaust the relevance of the public interest served by those laws in other legal contexts. 62 For example, the need to ensure that the protection they afford (at the evidence stage) is not undermined by procedural steps in proceedings may be such that, in the exercise of the courts' procedures requiring the production of documents, a court will give effect to the public interest reflected in the Shield Laws in advance of the giving of any evidence. This is not an extension of the Shield Laws themselves, but rather the exercise by the court of its own processes, in such a way as to prevent injustice. 69 Quinlan CJ then referred at [63] to Hancock, which is recited below at [76]. 70 The applicant here submitted that the basis on which Quinlan CJ distinguished Wran is plainly wrong. I do not agree that his Honour's reasoning is respect to Wran is incorrect. Wran was decided at the time of the newspaper rule. Hunt J concluded that rule was no more than a rule of practice, whereby the media (defendant) in a defamation proceeding would not be compelled to disclose the sources of information prior to trial (at the discovery phase). It was not a rule of law. It also did not apply at trial, with the common law not recognising journalist privilege. As Quinlan CJ correctly observed, since Wran, there has been a substantial shift in that position because of the Shield Laws; that is also the case here with the enactment of s 126K. At [28]-[29] of Al Muderis, Bromwich J described s 126K as follows: 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. 71 The passage at 259 of Wran relied on by the applicant must be viewed in that context. Hunt J said at 259 of Wran that "there is nothing to prevent a plaintiff seeking to obtain that information from another source and thereby to avoid (or evade) the privilege claimed by the defendant. The issue of the subpoena for that purpose cannot be said to be an abuse of the court's process". Further, as referred to above, the concept of abuse of process "must reflect contemporary values and, as well, take account of the circumstances of the case": Ridgeway at 75. Here, "contemporary values" includes the enactment of such provisions as s 126K, creating journalist privilege. As Bromwich J observed at [25] of Al Muderis: The very privilege denied any existence by the common law… 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. 72 Importantly, what exists in this case are Court orders, after full argument, that the privilege applies in relation to the confidential sources and that the applicant has not displaced it. The very documents refused by Bromwich J are sought by these subpoenas. That is a circumstance far removed from Wran. 73 I note also that the applicant submitted that Jensen (No 6) was distinguishable on the basis that the plaintiff in that case did not know who the sources were, which was the information they were seeking by the subpoenas. It was submitted that, by contrast, the applicant already knows the identity of the seven sources who are the recipients (or potential recipients) of these subpoenas. That submission is addressed above at [29]-[32]. However, unlike Jensen (No 6), as explained above at [33], the subpoenas are also directed to the unredacted version of documents refused by Bromwich J's orders. Each case must be determined on its own facts. 74 In Jensen (No 6), Quinlan CJ concluded that the issue of the subpoenas did not amount to an abuse of process because his Honour was satisfied other legitimate forensic purposes had been identified. In that context, his Honour (at [78]) referred to the fact that the power to control abuses of process is to be exercised sparingly and in exceptional circumstances, where there is no other way to protect the interests of justice. Nonetheless, there was an insufficient basis to permit inspection in respect to documents which would identify the confidential sources. Quinlan CJ considered, at [80]-[82] of Jensen (No 6), that the private and public interests involved in this matter are best addressed in the context of the Court's discretion as to whether, and to what extent, to allow inspection of the documents produced under subpoena. His Honour considered at [84]-[87] the limited relevance of the identity of the source to be weighed with the matters of public interest, in particular that disclosure of identity would undermine the public interest in the communication of facts and opinions by the public to news media. His Honour concluded that matters of public interest outweigh any legitimate forensic purpose in the plaintiff inspecting those documents. 75 In Jensen (No 6), Quinlan CJ at [30]-[39] and [63]-[64] also referred to the earlier case of Hancock, where Pritchard J concluded that the subpoena issued to the journalist was oppressive and an abuse of process because it would permit the plaintiff to obtain access to identifying information in circumstances where the journalist could not be compelled to disclose that information in evidence. Pritchard J concluded at [168]: To require the production of the documents sought under the subpoena would permit [the applicant] to obtain access to identifying information in circumstances where neither [the journalist] nor any officer of [the newspaper publisher] could be compelled to give evidence of that kind ... In my view, to permit the subpoena to be used in that way would constitute an abuse of process because it would wholly undermine the protection afforded to the identifying evidence under s 20I of the Evidence Act. 76 In relation to Hancock, Quinlan CJ said at [63] of Jenson (No 6): … Her Honour recognised that Parliament did not include a provision similar to provisions in New South Wales expressly extending the application of the Shield Laws to subpoenas. Nevertheless, her Honour concluded that: [T]he enactment of the Shield Laws means that the confidentiality of information provided to journalists by informants is no longer (if it ever was) a matter of purely private interests, but is now recognised as a strong public interest, which may outweigh other public interests which apply in relation to the production of documents for the purposes of litigation. 77 Although Hancock is factually distinguishable, it nevertheless recognised that such conduct is capable of amounting to an abuse of process. As evident from the passage just recited, this was in a context where s 20I does not apply to the issue of a subpoena to a journalist, in contrast to s 126K which has extended application by virtue of s 131A of the Evidence Act. Hancock was also decided in circumstances where there was no court order in relation to s 20I, with the conclusion based on the existence of the provision. 78 The conclusion as to the issue of a subpoena amounting to an abuse of process in the circumstances of the type considered in Jensen (No 6) and Hancock is not novel. The respondents also referred to Kizon where Beaumont J was faced with circumstances where a subpoena had been issued for the production of documents which the Full Court had concluded was prohibited by way of discovery by the Telecommunications (Interception) Act 1979 (Cth). The statutory prohibition did not apply to the issue of a subpoena. Beaumont J concluded that issue of the subpoena for those same documents was an abuse of process, on the basis that it was an indirect attempt to obtain discovery by another route. His Honour said that "it is a principle of general application that it is not permissible to do indirectly what is prohibited directly": Kizon at 271. 79 I return now to the facts of this case. 80 The applicant's submission which focuses on the application of s 126K (and the decision in Wran) fails to grapple with the basis of these applications, namely the issue of the subpoenas being an abuse of the Court's processes. These are not applications under s 126K, although the provision is plainly relevant in the consideration of the applications. Nor, contrary to the applicant's submission, does a conclusion that the subpoenas are an abuse of process involve an extension of the application of s 126K. Rather, such a conclusion is "the exercise by the court of its own processes, in such a way as to prevent injustice": Jenson (No 6) at [62]. The focus must be on the circumstances in which these subpoenas were issued or sought to be issued, which are described above. 81 The orders of Bromwich J upheld journalist privilege in relation to the 13 confidential sources the subject of challenge and rejected the applicant's application that those identities (and unredacted documents) be disclosed. Those orders were made after full argument by the parties as to the application of s 126K. The observation of Gaudron J in Ridgeway at 75 regarding an abuse of process bears repeating, that "notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case". The existence of s 126K is significant in reflecting the change in environment in how the justice system treats and respects the confidentiality of sources who have provided information to a journalist on that basis. Section 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": Al Muderis at [28]. These subpoenas are directed to persons who are not witnesses in these proceedings. Ms Grieve gave evidence in the s 126K hearing of the adverse effect the confidential sources said disclosure of their name would have on them. In respect to each of the recipients (based on the applicant's case as to their identity) his Honour found that the fears of disclosure were held and constituted an adverse effect of disclosure on them: Al Muderis at [188], [190], [197], [199], [201], [205], [210]. These subpoenas, by orders as to their issue, seek information (including the production of documents) prohibited to be given by Ms Grieve pursuant to the orders of Bromwich J. This is in a context where it is not suggested that there is any relevant change of circumstances. 82 On the applicant's case, the subpoenas circumvent the orders of Bromwich J in respect to seven persons. They do indirectly what the applicant was unsuccessful in obtaining before Bromwich J. That s 126K only applies to journalists and their employers does not assist the applicant. The issue of the subpoenas seeks to do indirectly what is prohibited by an order of this Court. It is inconsistent with, and undermines, the orders made by Bromwich J. The use of the subpoenas in the circumstances of this case serves to bring the administration of justice into disrepute. 83 That the applicant submits he seeks broader documents recording communications between, on his case, a confidential source and Ms Grieve (being documents of the recipient over and above those passing directly between them, and between the recipients and the identified patients), does not detract from that conclusion. Their existence is entirely speculative. Even if such documents existed, these subpoenas are still directed to obtaining communications which will identify the confidential sources, inconsistent with (and undermining the effect of) the orders of Bromwich J. I note, in any event, that the speculative nature of the existence of other documents is only highlighted by the illustrations given by the applicant during his submission as to what such documents might contain. Given that the current effect of Bromwich J's ruling is that Ms Grieve cannot be cross-examined to identify a confidential source (that is, journalist privilege can be claimed), the applicant was unable to articulate how such material, if it existed, could properly be used. 84 In the circumstances in which these subpoenas are issued, they are also oppressive. The recipients are not witnesses in the proceedings. As explained above, the recipients have expressed through Ms Grieve adverse consequences they fear from disclosure, which were accepted by Bromwich J (as demonstrating the adverse effects of the fears and that they are genuinely held). In the context of the purpose of s 126K, the findings of his Honour as to the public interest in non-disclosure (including that the public interest in non-disclosure of the sources is "overwhelming": Al Muderis at [309]), and his Honour's orders upholding the privilege, to require these persons (on the applicant's case) to out themselves as confidential sources, is burdensome and injurious: see for example Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 at 502. The issue of subpoenas that are oppressive would also bring the administration of justice into disrepute. At the broader level is the impact on the flow of information to journalists where, given the purpose behind s 126K, and with the privilege being upheld by Court order, an applicant can subpoena persons to circumvent those orders. 85 Given my conclusion it is unnecessary to consider the further basis advanced by the respondents that the subpoenas are oppressive if leave to inspect would likely be refused. That said, since the documents sought are those the subject of Bromwich J's ruling, those documents were before his Honour in redacted form. Given the redactions only relate to identifying material, his Honour undertook the weighing process and found firmly against non-disclosure. It follows that leave to inspect would be refused. The existence of any other documents in either category is speculative. 86 Given the circumstances in this case, the issue of these subpoenas is an abuse of the Court's process. There is no other way to protect the interests of justice but to strike out the subpoenas issued and to refuse to grant leave to the remaining subpoenas: cf Jensen (No 6) at [78].

Conclusion 87 For the reasons above, the subpoenas issued on 9 October 2023 are set aside and leave to issue the five subpoenas filed on 8 December 2023 is refused. I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.

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