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

Federal Court of Australia

Duma v Fairfax Media Publications Pty Limited [2020] FCA 1792 File number: NSD 514 of 2020

Judgment of: BROMWICH J

Date of judgment: 14 December 2020

Catchwords: PRACTICE AND PROCEDURE – applications by applicant and non-party subpoena recipient to set aside subpoenas issued in defamation proceedings at the request of respondents – pleaded imputations of bribery and corruption – where applicant seeks aggravated damages on the basis of the applicant's knowledge of the falsity of the imputations – where the respondents plead the defence of qualified privilege under s 30 of the Defamation Act 2005 (NSW) but do not plead the defence of justification under s 25 – where applicant pleads malice in reply as a barrier to the defence of qualified privilege succeeding – legitimate forensic purpose – whether there was a reasonable possibility that the documents would materially assist the party seeking their production – reasonable possibility is more than a mere possibility but less than probability – on the cards test – subpoenas not justifiable on basis of proof of qualified privilege or meeting reply allegation of malice as both need to be directed to proving the state of mind of the respondents before publication and during continued publication – subpoenas justifiable on basis of meeting applicant's pleading of knowledge of falsity of imputations as more than mere possibility that the documents sought will materially assist the respondents by addressing the question of falsity of the imputations and thereby addressing the applicant's pleaded knowledge of that falsity – interlocutory applications to set aside subpoenas dismissed with costs

Legislation: Defamation Act 2005 (NSW) ss 25, 30 Evidence Act 1995 (Cth) s 44