Duma v Fairfax Media Publications Pty Limited [2020] FCA 1792 | Case summary

Duma v Fairfax Media Publications Pty Limited [2020] FCA 1792 | Case summary | Zoe

[18]

BROMWICH J: 1 These are the reasons for an adjudication of a subpoena dispute in two closely related defamation proceedings arising out of the publication of articles in print and online in the Australian Financial Review newspaper (AFR) in the period from 10 to 16 February 2020 and on 14 April 2020. The first proceeding (NSD 420 of 2020) was commenced on 9 April 2020 in relation to the publication of the first set of articles (five in print and five online). The second proceeding (NSD 514 of 2020) was commenced on 7 May 2020, following the publication of the second set of articles taking place (one each in print and online). 2 The applicant for both proceedings is Mr William Duma, a minister in the national government of Papua New Guinea (PNG). The first respondent in each proceeding is the publisher of the AFR, Fairfax Media Publications Pty Ltd. The second and third respondents in each proceeding are the same two journalists as co-authors of the individual articles. The two proceedings are listed for trial together to commence on 29 March 2021. 3 Mr Duma, by an interlocutory application brought in the second proceeding, sought orders to set aside subpoenas issued at the request of the respondents and addressed to the proper officers of the Australian Federal Police (AFP) and of Horizon Oil Limited. Horizon Oil, by a non-party interlocutory application also brought in the second proceeding, sought an order to set aside the subpoena addressed to its proper officer. Aspects of the Horizon Oil subpoena were not pressed, and a part of the AFP subpoena was not relevant as nothing had been produced in response to it. The adjudication therefore focused on what remained. 4 Mr Duma and Horizon Oil contended that there was no legitimate forensic purpose for either subpoena, and that it cannot be shown that it is "on the cards" that the documents sought would materially assist the respondents' case: see Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; 182 A Crim R 536 per Beazley JA (with whom James and Kirby JJ agreed) at [58]-[70]; see also [71]-[80]. While the "on the cards" test arose in a criminal law context in Alister v The Queen (1984) 154 CLR 404 per Gibbs CJ at 414, it is now widely accepted that this is an appropriate standard to apply to all subpoenas. It was common ground that the respondents bore the onus of establishing that both requirements were met. 5 There will be no legitimate forensic purpose if all the respondents are doing is "fishing" for documents that might or might not exist. Nor is it permissible to use a subpoena to find out if a case (or an aspect of a case) exists at all: Commissioner for Railways v Small (1938) 38 SR NSW 564 at 575. It is not enough to have no evidence that fish of a particular kind were in a pool, but seek to drag the pool to see if there were any such fish there or not: Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN NSW 250 at 254. That does not mean that there must be certainty that the documents exist or that they will assist. 6 In Alister, in the course of a prosecution on charges of conspiracy to murder and attempted murder arising out of the notorious Sydney Hilton Hotel bombing case, the accused caused a subpoena to issue to the Australian Security Intelligence Organisation (ASIO). The subpoena sought files and documents relating to a person who had purported to be part of the plot, but had in fact infiltrated the group and informed police, and was the principal prosecution witness. There were publically known reasons for suggesting this person was an undercover agent of some government instrumentality, and, if this was the case, it could be inferred he would have made reports to ASIO. While the accused did not know and therefore could not state whether or not the documents they sought in fact existed, or if they did exist that they were likely to assist their case, there were sound reasons for suggesting that such documents were likely to exist, and would concern the applicants, including adverse reports about them: see Gibbs CJ at 414. The ultimate decision as to access turned on public interest immunity issues that are not presently relevant. Also, a finely balanced decision on a subpoena is more likely to favour the person seeking documents in a criminal case because of the liberty of the subject being at stake and related reasons. 7 The "on the cards" test derived from Alister means there must be at least a reasonable possibility that the documents sought would materially assist the party seeking their production, with probability being too high a standard, and mere possibility being too low a standard: Director of Public Prosecutions (Vic) v Selway (No 2) (2007) 16 VR 508; 172 A Crim R 359, per Cummins J at [10], quoted in Chidgey at [74]. Thus the mere possibility of relevance of such documents will not suffice: Chidgey at [59]-[60], quoting Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 at 181-2 per Mahoney AP. Certainty of utility of the material sought is not required but speculation or a mere chance is not enough: see Chidgey at [77]. 8 A subpoena may be set aside if it seeks material that does not have any apparent relevance to the issues that arise on the pleadings, such as having a bearing on an issue that is not "unreal, fanciful or speculative" or "being reasonably likely to add in some way to the relevant evidence in the case": Wong v Sklavos [2014] FCAFC 120; 319 ALR 378 at [12]. In Wong v Sklavos, the apparent relevance arose from being material that may reasonably have been relevant to the assessment of the applicant's claim of economic loss. The level of relevance is less stringent than applies to the admissibility of evidence: Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 at [23]. 9 A document does not itself have to be admissible before production may be required. This is because it may disclose information which may be established in some other admissible form, including by cross-examination upon, or informed by, such a document: Waind v Hill [1978] 1 NSWLR 372 per Moffitt P (with whom Hutley and Glass JJA agreed) at 381D-F and 385B; see also R v Saleam (1989) 16 NSWLR 14 at 22C. It follows that there is a legitimate forensic purpose in seeking the production of documents if there is a reasonable basis for concluding that they will be relevant, wholly or in part, to credit. This includes being capable of providing a proper basis for cross-examination, provided a sufficient nexus to an issue in the proceedings is established. However, if such documents are "manifestly irrelevant and incapable of touching matters of credit", the subpoena will be an abuse of process: A v Z [2007] NSWSC 899; 212 FLR 255 at [19] per Brereton J; see also Taylor v O'Neil [2012] NSWSC 626, per McCallum J at [23]-[24]. While A v Z was apparently reversed on appeal by consent, the Court of Appeal subsequently declined to find that the principles stated by Brereton J were wrong: see Commissioner of Police v Hughes [2009] NSWCA 306 at [85]-[90]. In Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622; 195 FCR 43 at [35], Bromberg J quoted with approval Thomas v SMP (International) Pty Ltd (No 2) [2010] NSWSC 870 at [19], and in particular the observation at [19(b)] that "[t]he forensic purpose requires realistic consideration of the potential strategic and evidentiary use of the documents in the context of the legal and factual issues that are required to be determined". 10 More recently it has been suggested that it is not legitimate to subpoena for documents that are relevant only to credit: see Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2019] FCA 2087 at [14], relying upon the observations of Lander J in Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission [2007] FCAFC 147; 161 FCR 122 at [105]. However, Visy was a discovery case, and [105] needs to be read in the context of [106]-[110]. I am therefore of the view that this general limitation is confined to discovery and perhaps to other aspects of the production of documents inter partes. Even if I am wrong about that limitation not applying to subpoenas, the documents are not sought for a purpose confined to testing credit, but rather also to the underling question of the falsity of the imputations, which is squarely raised upon Mr Duma's pleadings. 11 The published articles sued upon report a series of transactions in PNG concerning certain licences known as petroleum retention licences (PRLs). Mr Duma was the responsible minister for these licences, and thereby the ultimate decision-maker on behalf of the PNG government. The key sequence of events reported upon is as follows: (1) The PNG government refused to grant the extension of the term of a PNG petroleum retention licence known as PRL-5 in about November 2010. That licence had been held by Horizon Oil, Talisman Australasia Pty Ltd and Santos Niugini Exploration Ltd between 2000 and 2010. (2) Judicial review proceedings were commenced by Horizon Oil in relation to that refusal in about December 2010. (3) PRL-21 was a PNG petroleum retention licence in relation to the area previously covered by PRL-5. (4) PRL-21 was granted in about March 2011 to Horizon Oil, Talisman, Elevala Energy Ltd and Dabajodi International Energy Ltd (now known as Kina Petroleum Ltd). (5) Elevala's stake in PRL-21 was sold to Horizon Oil for US$10.3 million. 12 By his two statements of claim, Mr Duma relies upon a dozen or so imputations. It is sufficient for present purposes to identify three imputations in both proceedings now relied upon by the respondents to justify the issue of the subpoenas. In particulars (a), (c) and (d) to [4] and [5] in the statement of claim in the second proceeding, and in corresponding parts of the statement of claim in the first proceeding, the applicant pleads that imputations were made in the publications to the effect that he: (1) engaged in corrupt conduct by granting a 10% interest in PRL-21 to Elevala, a shell company owned and controlled by his associate, Mr Simon Ketan; (2) accepted a bribe from Horizon Oil as the Minister for Petroleum in PNG; (3) conspired with Mr Ketan and a Mr Darrell Seeto to use Elevala as a vehicle for the payment of a bribe to him. 13 It is in this context that the following documents are sought by the two subpoenas: (1) in relation to the subpoena to the AFP, for which documents have been produced in response to paragraphs 1 and 2 (but not in response to paragraph 3, which therefore does not require any further attention): 1. Copies of all documents dated from around June 2019 to the present, relating or referring to a cache of emails between personnel of, and advisors to, Horizon, Talisman, Elevala and Kina, concerning: a. the PNG government's refusal in or around November 2010 to extend a Petroleum Retention Licence, referred to as PRL-5; b. judicial review proceedings commenced in PNG in or around November 2010 by Horizon in relation to the PNG government's refusal to extend PRL-5; c. the PNG government's grant, in or around March 2011, of interests in a Petroleum Retention Licence, referred to as PRL-21; and d. the sale in around mid-2011 to Horizon of Elevala's stake in PRL-21. 2. Copies of all documents dated from around June 2019 to the present evidencing, recording or referring to any investigation by the Australian Federal Police into: a. the PNG government's grant in or around March 2011 to Horizon, Talisman, Elevala and Kina of interests in PRL-21; b. the sale in around mid-2011 to Horizon of Elevala's stake in PRL-21; c. the transfer of funds in around mid-2011 of approximately US$10.3 million, from a CBA bank account held by or in the name of Horizon, to a Westpac bank account held by or in the name of Elevala; d. the disbursement of funds from the proceeds of the sale of Elevala's stake in PRL-21 from Elevala's Westpac bank account; e. the source of funds, and their suspected link to the proceeds of the sale of Elevala's stake in PRL-21, used by Baccarat Investment Solutions Pty Ltd to purchase a house at 23 Glencairn Avenue, Indooroopilly, Queensland (Lot 13 Deposited Plan 113595, Brisbane City) in or around November 2011; and/or f. allegations of corrupt conduct, money laundering and/or any contraventions of Division 400 of the Criminal Code, in relation to the funds transfer referred to in (c) above and/or the purchase by Baccarat Investment Solutions Pty Ltd of the house referred to in (e) above, by: i. Horizon (or any of its officers, servants or agents); ii. Elevala (or any of its officers, servants or agents, including Simon Ketan); iii. Kina (or any of its officers, servants or agents); iv. Baccarat Investment Solutions Pty Ltd (or any of its officers, servants or agents, including Darrell Seeto); and/or v. William Marra Duma. (2) in relation to the subpoena to Horizon Oil (with paragraph 2 not reproduced as it is no longer being pressed): 1. Copies of all documents dated from around 10 February 2020 to the present, evidencing, recording or referring to any investigation into the circumstances surrounding Horizon's purchase of interests in PRL-21 in 2011 … including all documents evidencing, recording or referring to: a. the terms of reference of any such investigation; b. the outcome of any such investigation; c. any drafts of any report in respect of the outcome of any such investigation; d. deliberations and minutes of meetings of the Independent Board Committee of Horizon with oversight of any such investigation. 14 It is important to acknowledge a shift in the respondents' basis for justifying the issue of the subpoenas. In correspondence that informed the first-in-time written submissions for Mr Duma and Horizon Oil, the asserted legitimate forensic purpose was directed to the pleaded defence of qualified privilege under s 30 of the Defamation Act 2005 (NSW), and to Mr Duma's reply insofar as it alleged malice on the part of the respondents as a barrier to that defence succeeding. The allegation of malice in turn called for a subjective inquiry directed to the state of mind of the respondents at the time of publication, and perhaps afterwards in relation to continued publication. Such a state of mind cannot be discerned by reference to information that was not known to the respondents. This posed an immediate problem for the respondents in establishing a legitimate forensic purpose in seeking to obtain documents, the contents of which could not have been known to them at the time of publication. This point was articulated with some force in the outlines of submission furnished by Mr Duma and Horizon Oil. 15 By the time the respondents' written submissions in response to those of Mr Duma and Horizon Oil were filed, their justification for the subpoenas had shifted. Instead of being directed to meeting the allegation of malice aimed at defeating the defence of qualified privilege turning on the respondents' state of mind, it was directed to reliance upon Mr Duma's state of mind, by reference to: (1) the aspect of Mr Duma's statement of claim by which he seeks aggravated damages based upon his knowledge of the falsity of the imputations, including in particular the three summarised above; and (2) Mr Duma's replies in both proceedings insofar as they make reference to the imputations summarised above being false, with reliance placed on Mr Duma's reply in the second proceeding of particulars as to malice at [2(d)]: The continued online publication of the second matter complained of by the Respondents which contains the false allegation that the Applicant as the Minister for Petroleum in PNG accepted a bribe from Horizon Oil, despite: (i) Herbert Smith Freehills and Deloitte having conducted an investigation into the transaction subject of the allegation and having concluded that no breach of any Australian foreign bribery law had been established; (ii) the Respondents having knowledge of the outcome of the Herbert Smith Freehills and Deloitte investigation as is apparent from their article of 10 June 2020 headed "Horizon Oil gives itself the all clear over PNG payment" … . 16 In detailed oral arguments the respondents contended that it could not be malicious to publish and to continue to publish statements about Mr Duma that are shown to be true, even though a defence to that effect is not advanced. Similarly, they contend that he cannot be entitled to aggravated damages based upon a belief that the imputations are false if that belief is shown to be without foundation. By this alternative route, the live questions to which the subpoenas were said to be directed were whether those imputations are false, as Mr Duma alleges, and therefore whether Mr Duma could genuinely believe them to be false as pleaded. The respondents relied upon the detailed history of transactions pleaded in relation to the defence of qualified privilege to explain how the issue of falsity arises. 17 This different approach, at least as directed to meeting Mr Duma's pleading of the falsity of the imputations and rebutting his asserted belief as to that falsity, better met the requirement of demonstrating a legitimate forensic purpose. However, it posed different challenges for the respondents in articulating how it was said to be on the cards that the documents sought would materially assist them in relation to this aspect of their case. 18 As to legitimate forensic purpose, the respondents submitted the following for each subpoena: (1) In relation to the Horizon Oil subpoena, the respondents submitted that it would be expected that Horizon Oil, being a party to the transaction in question who caused an investigation to be conducted into the bribery allegation, would have a wealth of material on that topic. Much of this would have been considered to enable it to make a statement to the Australian Securities Exchange (ASX) on 9 June 2020. In substance, the respondents assert that they are entitled to go behind the limited conclusion, carefully phrased, that "[n]o breach of Australian foreign bribery laws has been established", in order to challenge the support that it ostensibly gives to Mr Duma's allegation of malice, and his belief that the imputations are false for the purposes of his claim for aggravated damages. This material is sought both as potential documentary evidence and as material for the purposes of cross-examining Mr Duma. (2) In relation to the AFP subpoena, the respondents submitted that the existence of an AFP investigation, not something falling short of that description, was "raised squarely" by the pleadings, and that the matters the subject of that investigation were likely to throw light on the issue of the falsity of the imputations Mr Duma relied upon. Some reference was also made to the justification for the subpoena of advancing proof of or support for the pleaded defence of qualified privilege, which appeared to reactivate reliance on that basis to justify the subpoenas. The respondents also submitted that the documents sought from, and already produced by, the AFP will shed further light on the investigation that was undertaken by Horizon Oil and the information that grounded the statement to the ASX. The respondents submitted that those documents are therefore likely to add to the evidence in their case. 19 The respondents further submitted that Mr Duma will assert the falsity of the imputations as pleaded at trial to further his claim for aggravated damages, and to advance his assertion of malice in part relying upon the outcome of the Horizon Oil investigation, and may tender further evidence in support of this. They submitted that there will be "an inevitable intersection" between the nature and scope of what was actually investigated on behalf of Horizon Oil and the conclusions reached as a result of that investigation, and the assertion by Mr Duma that what was published and sued upon was false. Thus the respondents seek documents that they asserted go directly to Mr Duma's positive assertion that he did not act corruptly. The respondents submitted that this material is likely to throw light on Mr Duma's allegation of falsity and will assist the respondents in the testing of that allegation in the course of cross-examining him. They also asserted that the material sought may have a bearing on the assessment of Mr Duma's credit, including, implicitly, by revealing further details of what he did and did not do in relation to his decisions affecting Horizon Oil. Reliance was also placed as much on what the Horizon Oil investigation did not look for and find, especially an asserted absence of knowledge of what subsequently happened to the approximately US$10.3 million that Horizon Oil paid for Elevala's interest in PRL-21. This is in the context of Elevala allegedly being a shell company set up just before PRL-5 was not extended; an allegation of bribery in relation to some or all of the US$10.3 million paid to Elevala; and a related allegation that some of that money may have been used to purchase a house in Brisbane. 20 Reliance is similarly placed on other aspects of the impugned transactions, which are identified for present purposes in the pleaded defence of qualified privilege. I understood this and other references to that pleading as being principally directed to outlining the factual matrix that will arise at the trial. The respondents asserted that, as a whole, these transactions have at least the appearance of impropriety of a kind that does not need to be spelt out for the purposes of this adjudication. They further asserted that they are not confined to what they effectively submitted is a carefully phrased whitewash of Horizon Oil's conduct, relied upon by Mr Duma, noting that the report of the Horizon Oil investigation to the ASX does not in any event purport to exonerate Mr Duma. 21 In relation to the AFP subpoena, the respondents have pleaded that an investigation is underway arising from Mr Duma's refusal to extend PRL-5 and his decision to grant PRL-21. They therefore submitted that it is on the cards that the material that the AFP has, and has produced to this Court in answer to the subpoena, will include documents of the kind sought in relation to the same transactions that were the subject of the Horizon Oil investigation. While the respondents do not know how advanced the AFP investigation is, nor whether any particular conclusions have been reached, their focus is on the primary documents relating to the transactions set out in the qualified privilege aspect of the defence. This was addressed in some detail in oral submissions as to the factual matrix that will arise at the trial. 22 In support of their submissions, the respondents relied upon the observation of McCallum J in Balzola v Passas [2018] NSWSC 1724 at [7]. This observation was to the effect that the issuing of a subpoena would support a claim of aggravated damages, based on the pleaded knowledge of the person suing for defamation of the falsity of the imputations, even when justification is not pleaded. The subpoena in that case was struck out by reason of impermissible breadth, not because it sought documents going to the issue of falsity. Similarly, a subpoena was struck out by Beech-Jones J in O'Shane v Harbour Radio Pty Ltd [2014] NSWSC 93 insofar as it went beyond two complaints to the Judicial Commission of New South Wales concerning, amongst other things, nine cases involving the plaintiff, who was a magistrate. The subpoena had a legitimate forensic purpose in relation to those complaints on the issue of aggravated damages based on the plaintiff's asserted belief that the imputations were false, given that there was a reasonable basis for believing there was a complaint and a reasonable basis for complaining: see [64]-[65]. There was no such foundation for such a reasonable belief in relation to the remaining complaints sought by subpoena. 23 The primary response by Mr Duma originally was that the defence of qualified privilege is to be made out by reference to the reasonableness of the conduct of the respondents in the period from February to April 2020, the time between the publications. This defence cannot be advanced by reference to material that was not known to them at that time, such that this disposes of the argument that the documents sought can be used to advance the defence pleaded, as opposed to challenging the case advanced by Mr Duma. That much seems to be accepted by the respondents in the change in their case to justify the subpoenas detailed above. 24 In relation to the respondents' justification for the subpoenas based on Mr Duma's case for aggravated damages, and his malice response to the qualified privilege defence, his counsel did not deny that that he intends to rely upon the facts detailed in his 20 February 2020 press release and that document itself, and also the Horizon Oil 9 June 2020 announcement to the ASX. In doing so, he asserted that the seeking of material going behind the Horizon Oil investigation involved no more than speculation as to what had been considered. That argument seems difficult to sustain given that what is sought includes the terms of reference and draft reports, which would seem to go directly to what was, and thereby what was not, considered. Horizon Oil makes submissions to like effect as to the limitations on what can be relied upon to advance the defence of qualified privilege. 25 In relation to the bases for the subpoenas advanced to meet the claim for aggravated damages, and to address the asserted malice response to the defence of qualified privilege, Mr Duma pointed to the limitations imposed upon the so-called Burstein principle (from Burstein v Times Newspapers Ltd [2001] 1 WLR 579). This principle provides that facts in mitigation are not confined to a substantive defence to liability, but rather able to be pleaded as relevant only to the assessment of damages. That approach is to be treated with caution because of the vagueness attendant upon its application to the tender of evidence. More is required than rumour or mere allegation and it must "concern specific conduct that is directly relevant to either the subject matter of the alleged defamatory statement, or the claimant's reputation in the part of his or her life the subject of the defamatory publication": Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550, [45]; see also at [32]-[33]. 26 Horizon Oil adopted Mr Duma's submission. Additionally, it submitted that the "temporal operation" of the plea of malice is no earlier than 9 June 2020 (and onwards in relation to continued publication), being the date of the announcement to the ASX that no breach of Australian foreign bribery laws had been established; and, that the relevant knowledge on the part of the respondents is tied to that conclusion rather than any more general knowledge of the contents of that investigation. This submission is directed to the qualified privilege defence which re-emerged during the course of oral argument, rather than the aspect of aggravated damages replied upon by Mr Duma and his reply pleading of malice in response to the defence of qualified privilege, now principally relied upon by the respondents. 27 Viewed in that way, Horizon Oil submitted that the documents sought from it have no apparent relevance to any issue in the proceedings. That is because malice is concerned with the respondents' state of mind at the time of publication or continued publication, with Mr Duma required to prove an improper motive actuating publication, being the product of a subjective inquiry. This precludes resort to documents that the respondents did not have at the time of publication. In that context, any argument concerning the scope of the investigation is similarly limited to what was known by the respondents at the time of publication, and perhaps subsequently for continued publication. Again, that seems to be accepted by the respondents, accounting for the shift in the argument already described. 28 In relation to the respondents' adjusted case based on Mr Duma's claim for aggravated damages and his reply assertion of malice, Horizon Oil submitted that in the absence of a defence of truth, the subpoena addressed to it is properly characterised as fishing. That was said to be because, once the focus is no longer on the state of mind of the respondents in relation to qualified privilege, but rather on the falsity of the asserted imputations and the state of mind of Mr Duma in relation to that asserted falsity, there needs to be some precision as to just what is sought and why. It cannot be a sweep of documents at large to inform the cross-examination of Mr Duma as to his credit. Horizon Oil placed reliance on the fact that the part of the subpoena directed to it that sought primary documents that were the subject of the investigation had been abandoned, such that what is now sought is confined to, at most, the "filtered opinion of a law firm and an accounting firm in relation to the material that they've considered", and other secondary material, which cannot be used to prove any primary fact. This seemed to suggest that Horizon Oil took the approach that legitimately subpoenaed material is confined to material which would be admissible as evidence. 29 Despite the respondents having apparently abandoned the justification for the subpoenas advanced in relation to proof of the defence of qualified privilege, or meeting the reply allegation of malice insofar as it concerns their state of mind, it is appropriate to state a conclusion about that justification because it did seem to re-emerge during the course of the respondents' argument. The conclusion I have reached is that any support for both subpoenas based upon furthering the defence of qualified privilege must fail for the reasons advanced by Mr Duma and Horizon Oil. That is, the relevant issue for that defence is the state of mind of the respondents at the time of publication, including continuing publication. That cannot properly be bolstered by reference to evidence that renders the assessment of what was known at the time better or more sound. Neither subpoena has that as a legitimate forensic purpose, nor can either meet the test of it being on the cards that the documents sought will materially assist the respondents in the advancement of that defence. It is not just that the documents sought are not shown to be relevant, but rather that they are positively irrelevant to that defence. 30 Attention then turns to the primary (if not only) case ultimately advanced by the respondents of meeting Mr Duma's pleaded assertion that the imputations were false, and that Mr Duma believed them to be false, going to the claim for aggravated damages and the defeasance of the defence of qualified privilege by reliance on malice. Both Balzola v Passas and O'Shane v Harbour Radio Pty Ltd provide support for a subpoena advanced upon that basis, provided it is drafted with sufficient precision so as to satisfy the requirement of having a legitimate forensic purpose, and of it being on the cards that the documents sought will materially assist the respondents in that way. 31 Mr Duma has chosen to plead and thereby rely upon the correctness of the outcome of the Horizon Oil investigation, namely that no breach of Australian foreign bribery laws had been established, to assist in making good both his assertion and belief that the imputation of him accepting a bribe is false, and to advance his case for aggravated damages and in aid of defeating the defence of qualified privilege. Through his counsel he asserted that he intends to rely upon the contents of the ASX announcement (including the conclusion reached in the investigation conducted on behalf of Horizon Oil) and his press release. He contended that the respondents were not entitled to go behind either even in relation to his pleaded case of falsity and belief as to falsity. Notwithstanding that apparent self-imposed limitation, it seems clear that he will be entitled to seek to bolster that investigation outcome by way of any evidence that he may be able to give to like effect. 32 The respondents are entitled to meet Mr Duma's case of falsity, and belief as to falsity, without going so far as to plead and prove a defence of truth. They are entitled to challenge, by appropriate documentary material and by way of cross-examination assisted by such material, the assertion that the imputation that Mr Duma had accepted a bribe was false, and that he believed that to be so. That conclusion applies to both subpoenas. 33 Contrary to the submissions for both Mr Duma and Horizon Oil, the respondents are not obliged to accept the outcome of that investigation for either forensic purpose, nor to confine themselves to asking Mr Duma rote questions to challenge his account in only a formal or perfunctory way so as to permit a closing submission to the effect that his stance is challenged. That is so notwithstanding the absence of a defence of truth. That would in turn justify a suitably drafted subpoena seeking documents pertaining to the Horizon Oil investigation and not just to the primary records that were made the subject of the investigation. While it is reasonable to infer, not merely speculate, that such primary material would be likely to prove, or assist in proving, at least aspects of the objective facts, at least in a documentary record sense, as to what actually took place, and that such material may thereby provide a means of rebutting the conclusion that the imputations are false, and thereby undermine the asserted belief to that effect, I do not accept that the respondents are confined to seeking such primary material (noting such primary material is what was sought by the since abandoned paragraph 2 of the Horizon Oil subpoena). 34 I am satisfied that the arguments advanced in support of seeking those secondary records pertaining to the Horizon investigation establish that it is on that cards that they are likely to assist in the possible production of relevant documentary material. They may further assist by exposing the limits placed on the investigation, especially in relation to Mr Duma, and are likely, by aiding cross-examination as to his pleaded reliance upon that investigation, to assist in challenging his asserted falsity of the imputations, and thereby the basis for his belief as to falsity. It is not to the point that those will not be documents that Mr Duma dealt with or authored, such that he may not be able to be directly cross-examined upon them unless they are somehow admitted into evidence: s 44 of the Evidence Act 1995 (Cth). The utility in obtaining documents on subpoena is not limited in that way. 35 It followed that in making the orders on 3 December 2020, I was satisfied that the respondents had established that they had a legitimate forensic purpose in seeking the documents described in paragraph 1 of the Horizon Oil subpoena, and that it was on the cards that such documents as would ultimately be produced by Horizon Oil would materially assist them in this aspect of their case. Accordingly, both Horizon Oil's interlocutory application was dismissed with costs, and the part of Mr Duma's interlocutory application seeking an order to set aside the Horizon Oil subpoena failed. 36 In relation to the AFP subpoena, based upon the documents that are sought, and their likely relationship to the forensic purpose that has been identified, I am satisfied that the respondents have established that it is on the cards that such material will assist the respondents in relation to the alternative issues that have been identified, as detailed further below. I do not accept that there is any material distinction between seeking documents recording or arising from the AFP examining primary material provided to it in order to decide whether to commence an investigation, or such an investigation being underway. Indeed as noted below, paragraph 1 of the AFP subpoena is not directed to an investigation per se. 37 Paragraph 1 of the AFP subpoena was not ideally drafted, and was not in terms tied to any AFP investigation. It seeks documents dated from around June 2019 to the date of the subpoena, 25 June 2020, that relate or refer to a cache of emails and letters (also described in [9(d)(vii)] of the pleaded defence of qualified privilege in the second proceeding). That correspondence concerned the transactions summarised at [11] above that directly relate to the imputations relied upon to justify this subpoena summarised at [12]. Some of the details set out in paragraph 2, and any reference to the purchase of the house in Brisbane, were not included. Paragraph 2 of the AFP subpoena, also not ideally drafted, seeks documents dated from around June 2019 to the date of the subpoena, 25 June 2020, that evidence, record or refer to any AFP investigation into the same transactions, extending to the house and the funds used to purchase it. Clearly enough both paragraphs seek to go beyond the primary records of the licence transactions and (at least implicitly) seek to obtain documents that disclose more about those transactions and about the house purchase. I consider that the material sought by both paragraph 1 and paragraph 2 of the AFP subpoena is sufficiently focused on the events related to the transactions reported on by the publications which gave rise to the pleaded imputations, the question of the falsity of the imputations of corruption relied upon by Mr Duma, and his asserted belief as to that falsity. It is also reasonably likely that the response to the subpoena will include documents that may be expected to form part of the respondents' case on those issues, or be a likely aid in obtaining such documents, as well as being material that may reasonably be expected to support the cross-examination of Mr Duma as to both his assertion of falsity, and the foundation of his belief in that regard. 38 It followed that in making the orders on 3 December 2020, I was satisfied that the documents sought are described in a way that sufficiently links them to the transactions to which the imputations and surrounding events relate. In particular, they are sufficiently linked to Mr Duma's pleaded case for aggravated damages, and pleaded case in reply in relation to the defence of qualified privilege, so as to give rise to a legitimate forensic purpose. Similarly, it was on the cards that such documents would materially assist in the aspect of the respondents' case for which they are sought. While is not clear that the documents sought, and indeed already produced, will include documents that will be admissible, that remains reasonably possible as it is likely that other primary records will be produced. I do not accept that this is properly characterised as speculation, as opposed to fairly available inference. 39 I was therefore satisfied that the "on the cards" test was readily met. There is at least a reasonable possibility that the documents sought will materially assist in the conduct of this aspect of the respondents' case, including in the cross-examination of Mr Duma, and including by way of better understanding the transactions reported on and the imputations relied upon. In this regard, I also place some weight on the observations of Moffitt P in Waind v Hill at 381E to 385D, noting that the question of admissibility of any such documents sought to be tendered is a trial issue, and noting that this is not a question of access, as the basis for production to the Court is challenged by the application to set aside the AFP subpoena. I also note that while documents have already been produced in answer to paragraphs 1 and 2 of the AFP subpoena, my decision not to set them aside means that there may remain live issues concerning access to that material, including any outstanding privilege or public interest immunity claims. 40 For the forgoing reasons, the part of the interlocutory application by Mr Duma by which he seeks an order to set aside the AFP subpoena fails, and with the relief sought in relation to the Horizon Oil subpoena also failing. Mr Duma's interlocutory application is dismissed with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.

Duma v Fairfax Media Publications Pty Limited

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