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].