BESANKO J:
1 This is an Interlocutory application brought by the respondents seeking orders that two Notices to produce served by the applicant and dated 1 and 2 July 2021 respectively, and a Subpoena to produce documents directed to a medical practice, be set aside. The Interlocutory application is supported by an affidavit affirmed on 20 July 2021 by the respondents' solicitor, Mr Peter Bartlett. The applicant has filed and served an affidavit in opposition to the Interlocutory application, being an affidavit of the applicant's solicitor, Mr Paul Svilans, affirmed on 28 July 2021.
2 On 7 February 2022, I made orders that the two Notices to produce and the Subpoena to produce documents directed to a medical practice be set aside. I said that I would deliver reasons for making those orders and these are my reasons.
3 I will deal first with the Subpoena to produce documents directed to a medical practice. The Subpoena seeks the production of one copy of all documents referring to and/or evidencing treatment sought by and/or given to Person 17 during the period 1 January 2018 to 31 December 2018. The documents sought include, but are not limited to, treatment notes, medical records, reports, opinions, referrals and any other documents.
4 The respondents submitted that the Subpoena was too wide and on its face extended to irrelevant medical information. The respondents accept that a more narrowly framed Subpoena may be justified and referred to particular issues relating to Person 17 in March 2018.
5 The applicant opposed the respondents' application. In paragraph 15 of the applicant's submissions, a series of specific matters involving Person 17 are identified. It is not necessary for me to set out the details.
6 In my opinion, having regard to the issues identified in the material, the class of documents sought by the Subpoena, which extends over a period of one year, is too wide. I agree with the respondents that on its face the Subpoena seeks irrelevant medical information. The principles governing the setting aside of a subpoena are set out in my reasons in Roberts-Smith v Fairfax Media Publications Pty Limited (No 16) [2021] FCA 584 (at [30]-[32]) and I will not repeat them. The Subpoena should be set aside.
7 As I said at the time I made the order setting aside the Subpoena, a more targeted or focused Subpoena to produce documents may be allowed.
8 I turn now to the two Notices to produce.
9 The Notice to produce dated 1 July 2021 seeks the production of two classes of documents. The first class is of communications passing between Person 17 and the respondents prior to 10 and 11 August 2021. Those are the dates of the publication of the Fifth Matter complained of. The communications sought are those referring to and/or concerning the allegations of justification and contextual truth pleaded in the Second Further Amended Defence in paragraphs 132 to 138 of and/or any of the matters referred to in Person 17's Outline of Evidence. The second class is the same as the first class except that it relates to notes of conversations between Person 17 and any of the respondents with respect to the matters identified in the first class.
10 The second Notice to produce is dated 2 July 2021. It seeks three classes of documents.
11 The first class is any note or record of any conversation(s) taking place between Mr McKenzie (the second respondent), Detective Superintendent Matthew Warren of the Australian Federal Police (the AFP), and/or Person 17 on or about 29 or 30 May 2018. The significance of these dates is that the applicant says that there was a communication between Mr McKenzie and Mr Warren on those dates and in that respect the applicant refers to Exhibit A37 and the note that Mr McKenzie referred Person 17 to the AFP on those dates.
12 The second class is any documents provided to or sent by Mr McKenzie to Mr Warren on 29 or 30 May 2018 referring to and/or concerning the following: (1) the domestic violence allegations in the Second Further Amended Defence; (2) Person 17's Outline of Evidence; and (3) the war crimes allegations in the Defence.
13 The third class is the same as the second class except that it is wider in the following respects: (1) it relates to any of the respondents; (2) it relates to the AFP generally; and (3) it adds reference to the Outlines of Evidence of John McLeod, Danielle Scott and Person 18 (with respect to paragraphs 26 and 27).
14 The respondents claim that the documents which fall within the classes contained in the Notices to produce are the same as the documents which fall within the agreed categories of documents for discovery and, in particular, paragraph 1 thereof. The respondents claim that the documents have already been discovered.
15 In Roberts-Smith v Fairfax Media Publications Pty Limited (No 3) [2020] FCA 2 (Roberts-Smith (No 3)) (at [16]), I identified paragraph 1 of the agreed categories of documents for the purposes of discovery. It is as follows:
All documents relating to and/ or concerning:
(a) the allegations that the Applicant has engaged in war crimes, bullying conduct, domestic violence and/or any of the Applicant's other conduct particularised by the Respondents in paragraphs 17 to 138 of their Defence;
(b) the allegations that the Applicant has engaged in war crimes, bullying conduct, domestic violence and/or any of the Applicant's other conduct as referred to in the Respondents' Outlines;
(c) the Applicant's alleged bad reputation as particularised in the said Defence and/or as referred to in the Respondents' Outlines of Evidence as filed in the proceedings; and
(d) the incident on 31 July 2012 in which Sergeant Jamie was wounded referred to at page 483 of the Third Respondent's book "No Front Line".
including but not limited to notes, recordings, emails, text messages, Facebook, WhatsApp, Telegram or other social media messages, statements, photographs, reports and other documents.
16 In Mr Bartlett's affidavit affirmed in support of the Interlocutory application, he states the following:
8. I am instructed by each of the Respondents that all documents captured by the 1 July 2021 and the 2 July 2021 [Notices] have been discovered by the Respondents, and are included in their verified lists of documents for discovery.
17 I accept that that is the case and ordinarily that would be the end of the matter because it is an abuse of process to issue a Notice to produce as a substitute for discovery or to seek to go behind an affidavit of discovery (Tony Azzi Automobiles Pty Ltd v Volvo Car Australia Pty Ltd [2006] NSWSC 283 at [4]-[13]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 at [6] and [11]). However, the position is that the documents referred to in the verified lists of documents for discovery have been produced by the respondents to the applicant, but only insofar as, on the respondents' case, they are not covered by journalist privilege as defined in s 126K of the Evidence Act 1995 (Cth).
18 Section 126K of the Evidence Act is in the following terms:
(1) If a journalist has promised an informant not to disclose the informant's identity, neither the journalist nor his or her employer is compellable to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be ascertained.
(2) The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs:
(a) any likely adverse effect of the disclosure on the informant or any other person; and
(b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.
(3) An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit.
19 Both parties made submissions on the scope and application of journalist privilege. I can leave to one side for present purposes whether the appropriate procedure for such a challenge has been engaged by the applicant. I am able to deal with the application without addressing that issue.
20 In my opinion, the challenge to the journalist privilege fails at this stage.
21 In order to explain this conclusion, I start by outlining as succinctly as possible the ruling in Roberts-Smith (No 3). In Roberts-Smith (No 3):
(1) I outlined the nature of the proceedings in [6]-[12];
(2) the Outlines of Evidence filed by the respondents are identified in [13]-[14];
(3) the discovery made by the respondents and the claim for privilege under s 126K is described in [16]-[17]. At the time of the hearing before me, the claim under s 126K was made in a combined List of Documents filed and served on 25 October 2019. Updated lists have been subsequently filed, but as I understand it, the same position has been taken in those lists;
(4) the claim by the applicant that there was no privilege under s 126K because the sources had been identified is described in [18]-[22] and [52];
(5) the evidence from the journalists and my conclusion that the elements of s 126K(1) were established is identified in [23]-[33] and [43];
(6) the fact that the applicant did not seek to engage the provisions in s 126K(2) is referred to in [45]; and
(7) the applicant's essential argument is described in [52] and my reasons for rejecting it are set out in [60]-[99], especially at [81]-[84]. In sum, I rejected the contention that by reason of the circumstances identified, there had been disclosure of the identity of the various persons such that the privilege no longer applied.
22 In my opinion, the position is largely unchanged from the position as it was at the time of Roberts-Smith (No 3).
23 The focus of the applicant's submissions was as follows.
24 First, the applicant submitted that it is unlikely Person 17 is a confidential source having regard to the following evidence: (1) Person 17's identity is not confidential, either to the applicant or to the Court; (2) Person 17 is referred to extensively in the Fifth Matter complained of in the Statement of claim and the account given of the events at the Realm Hotel could only have come from her; (3) Person 17 went to the respondents first before they jointly met with the AFP (Exhibit A37); and (4) the applicant gave evidence in the trial on 25 June 2021 that he became aware that Person 17 had seen Mr McKenzie, the second respondent, and he had taken the allegations to the counter-terrorism task force (transcript page 832).
25 As I understand it, the submission is that Person 17 is, in the circumstances, a known source. I do not consider that this has been established. In reaching that conclusion, I have had regard to the matters identified in Roberts-Smith (No 3) (at [81]-[82]) as follows:
81 In my opinion, it must be quite clear that there is information available which discloses the informant's identity, or enables the identity to be ascertained, before the journalist's privilege in s 126K(1) is displaced. The publisher or journalist carries the onus of establishing the elements of the section, but does not carry the onus of negating a claim that disclosure of identity has already taken place. The onus of establishing that is on the person who claims that the privilege has been displaced. There is a broad analogy between the circumstances of prior disclosure sufficient to displace journalist privilege and waiver of legal professional privilege in that the person who asserts displacement or waiver must establish it and the evidence establishing such displacement or waiver must be quite clear.
82 It is important to bear in mind that the person whose identity is protected is an informant, that is to say, a person who gives information to a journalist. That person is not necessarily an eyewitness or a person whose information would be admissible evidence in a court.
I am not satisfied that it is known that Person 17 is an informant within s 126K of the Evidence Act.
26 Secondly, the applicant submitted that the documents ought to be produced. I assume he means by that that they be produced to the Court and then inspected by the Court. The difficulty with that proposal was identified in Roberts-Smith (No 3) (at [44]):
44 The only other reason it was suggested the Court might inspect the documents is to determine whether some part of particular documents can and should be disclosed without infringing s 126K(1). It is not clear to me that that can be done under s 126K(1) and the Court's general powers. Even assuming that it can be done, there are two reasons why it should not be done in this case. The first reason is that both Mr McKenzie and Mr Masters have sworn that disclosure of the documents, even with names redacted, would disclose the identity of the informants. There is nothing before me that suggests that this is not the case. Secondly, even if I was minded to inspect the documents, I am not at all confident that I could determine what information would disclose the identity of the informants and what information would not. The case is quite different from one in which the Court inspects documents with a view to determining a claim for legal professional privilege where, in the ordinary case at least, a judge clearly has the required level of expertise.
27 There is force in the respondents' submission that to identify the documents responsive to particular paragraphs in the Notices to produce would itself impinge on the privilege in the sense that to say there is a document is to confirm that the person identified is a source.
28 I have said earlier that the challenge to journalist's privilege fails at this stage.
29 As I noted in Roberts-Smith (No 3), there is an argument that a person called as a witness at the trial may be asked whether they have given information to a journalist and, if yes, the respondent may be required to produce the documents on the basis that the source has identified himself or herself and the privilege no longer applies (Roberts-Smith (No 3) at [55]). The applicant submitted that if the source identified himself or herself and the privilege no longer applied, then as to those witnesses on the respondents' witness list, the decision can and should be made now that the documents be produced as this will lessen any disruption to the orderly progress of the trial. I do not accept that that can be done in advance of the person giving evidence. The respondents submitted that such a question to a witness would not be permissible because it would destroy the privilege (see the respondents' outline of submissions dated 4 February 2022). I raised with the respondents the relevance of these submissions in light of the fact that there is presently no question before a witness which raises the issue. The possibility of an advanced ruling under s 192A of the Evidence Act was raised, but not pressed.
30 I wish to make it clear that I make no comment on the ruling I would give should a question be asked of a witness along the lines I have suggested and an objection taken to the question.
31 It was for these reasons that I set aside the Notices to produce and the Subpoena to produce documents.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.