Roberts-Smith v Fairfax Media Publications Pty Limited (No 3) [2020] FCA 2

FEDERAL COURT OF AUSTRALIA

Roberts-Smith v Fairfax Media Publications Pty Limited (No 3) [2020] FCA 2 File numbers: NSD 1485 of 2018 NSD 1486 of 2018 NSD 1487 of 2018

Judge: BESANKO J

Date of judgment: 6 January 2020

Catchwords: EVIDENCE — three interlocutory applications filed in three defamation proceedings — where the respondents claim journalist privilege under s 126K of the Evidence Act 1995 (Cth) in relation to various documents recording conversations with confidential sources and/or various documents provided by confidential sources — where the applicant seeks an order that the respondents produce documents to the Court for inspection — whether the Court can and should inspect the documents to determine whether there has been disclosure or whether some part of particular documents could be disclosed without infringing s 126K(1) of the Act EVIDENCE — where the applicant seeks access to the documents which are not properly the subject of a claim for privilege under s 126K and/or are connected to a source the identity of whom has already been disclosed — whether the privilege was lost when various outlines of evidence were filed in the proceedings — whether there has been disclosure of the identities of the sources by reference to the publications, the pleadings and the outlines of evidence — whether the issue of whether there has been disclosure is determined on the balance of probabilities — where no application was made under s 126K(2) of the Act for an order that s 126K(1) not apply

Legislation: Evidence Act 1995 (Cth) ss 126J, 126K, 133 Federal Court of Australia Act 1976 (Cth) ss 37AF Federal Court Rules 2011 (Cth) rr 20.32, 20.35 Defamation Act 2005 (NSW) ss 25, 26