Supreme Court New South Wales

• Medium Neutral Citation: Liu v The Age Company Limited [2012] NSWSC 12
• Hearing dates: 11, 12 October 20101, 2, 3, 4, 9, 10, 11, 17 February 2011written submissions closed 25 February 2011
• Decision date: 01 February 2012
• Before: McCallum J

Decision

Orders made for preliminary discovery under rule 5.2 of the Uniform Civil Procedure Rules 2005

• Catchwords: CONSTITUTIONAL LAW - implied freedom of communication on matters of government and politics - power to order preliminary discovery under rule 5.2 of the Uniform Civil Procedure Rules 2005 - whether rule 5.2 authorises orders in respect of the identity of a confidential source who has provided information to a journalist for use in a publication about government or political matters - whether the newspaper rule is of absolute effect in protecting the journalist against such an order in the case of communication on matters of government and politics; PRACTICE AND PROCEDURE - preliminary discovery - publication amounting to communication on matters of government and politics - alleged defamation of plaintiff - plaintiff seeking identification of journalists' confidential sources - where journalists alleged to have been provided with forged documents - whether discretion enlivened - discretionary factors
• Legislation Cited: Defamation Act 2005; Evidence Act 1995; Judiciary Act 1903 (Cth); Uniform Civil Procedure Rules 2005
• Cases Cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 199; British Steel Corporation v Granada Television LimitedI [1981] AC 1096; Broome v Cassell & Co Ltd [1972] AC 1027; Coleman v PowerI (2004) 220 CLR 2; John Fairfax & Sons Ltd v Cojuangco (1987) 8 NSWLR 145; John Fairfax & Sons Limited v Cojuangco (1988) 165 CLR 346; John Fairfax Publications Pty Limited v Doe 91995) 37 NSWLR 81; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520; Levy v Victoria (1997) 189 CLR 579; Liu v The Age Company [2010] NSWSC 1176; Liu v The Age Company Ltd [2011] NSWSC 53; McGuinness v Attorney-General (Vic) (1940) 63 CLR 73; Morton v Nylex Limited [2007] NSWSC 562; Nagle v Chulov [2001] NSWSC 9; NRMA v John Fairfax Publications Pty Limited [2002] NSWSC 563; Roads and Traffic Authority of New South Wales v Australian National Carparks Pty Ltd [2007] NSWCA 114; Sims v Wran [1984] 1 NSWLR Stephens v West Australian Newspapers Limited [1994] HCA 45; (1994) 182 CLR 211; Theophanous v Herald & Weekly Times [1994] HCA 46; (1994) 182 CLR 104; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Webb v Bloch (1928) 41 CLR 331
• Category: Principal judgment
• Parties: Helen Liu (plaintiff); The Age Company Ltd (first defendant); Richard Baker (second defendant); Phillip Dorling (third defendant); Nick McKenzie (fourth defendant); Attorney-General (NSW) (Intervening pursuant to s78A of the Judiciary Act 1903)
• Representation: B McClintock SC and G Rubagotti (plaintiff); T Blackburn SC, ATS Dawson and L Brown (defendants); M Sexton and S Free (Attorney-General (NSW)) (Intervening pursuant to s78A of the Judiciary Act 1903); Kennedys Lawyers (plaintiff); Minter Ellison (defendants); Crown Solicitor (Attorney-General (NSW)) (Intervening pursuant to s78A of the Judiciary Act 1903)
• File Number(s): 2010/224488
• Publication restriction: None

Judgment

1 HER HONOUR: On 3 February 2010, an article published in The Age newspaper alleged that Ms Helen Liu, to whom the newspaper referred as a Chinese-Australian businesswoman, had made substantial payments to the former defence minister, Mr Joel Fitzgibbon, as part of "a campaign to cultivate him as an agent of political and business influence". The article was published under the headline "Fitzgibbon's $150,000 from Chinese developer - former defence minister cultivated over years". Ms Liu alleges that she has an actionable claim for defamation in respect of that article and another article published in The Age in which similar allegations were made.

2 The allegations concerning Ms Liu in the first article were supported with quotes from documents said to be her personal and business records "obtained by The Age after a 10-month investigation". Ms Liu alleges that the quoted documents are forgeries or have otherwise been falsely attributed to her. She has sought to ascertain who provided that material to the newspaper.

3 The three journalists who wrote the article (the second to fourth defendants) maintain that the records referred to in the article were provided to them on a confidential basis and have refused to name their sources. By these proceedings, Ms Liu seeks orders for preliminary discovery to enable her to ascertain the identity of those persons for the purpose of commencing proceedings for defamation against them.

Relief sought

4 The orders are pursuant to rule 5.2(2)(a) of the Uniform Civil Procedure Rules 2005, which relevantly provides:

(1) This Rule applies if it appears to the court that:

(a) the applicant, having made reasonable inquiries, is unable to sufficiently ascertain the identity or whereabouts of a person (the person concerned) for the purpose of commencing proceedings against the person, and

(b) some person other than the applicant (the other person) may have information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the person concerned.

(2) The court may make either or both of the following orders against the other person:

(a) an order that the other person attend the court to be examined as to the identity or whereabouts of the person concerned;

(b) an order that the other person must give discovery to the applicant of all documents that are or have been in the other person's possession and that relate to the identity or whereabouts of the person concerned.

5 The relief sought by Ms Liu under that rule is as follows:

1. An order pursuant to Rule 5.2(2)(a) of the Uniform Civil Procedure Rules that the second to fourth defendants inclusive attend the Court on such date as the Court may determine to be examined as to the following matters:

(a) the identity and further description of the person or persons who provided to them or any one or more of them or to any other person on behalf of the first defendant [the proprietor of The Age ], the documents referred to in the affidavit of Elaine Quinn sworn on 2 July 2010;

(b) the manner and circumstances in which the second to fourth defendants or any other person on behalf of the first defendant obtained the documents including the person or persons from whom the documents were obtained.

2. An order pursuant to UCPR 5.2(2)(b) that the defendants give discovery of the documents referred to in order 1(a) above.

3. An order that the defendants and each of them produce to the Court on the examination referred to in order 1 above all memoranda, notes, notebooks, audio recordings video recordings, diaries, draft articles, correspondence, records of interview and other documents and papers or copies thereof which relate to or record any interview, meeting, conversation or other actions with the person from whom the defendants obtained the documents referred to in order 1 above and which identify any such person or persons by name or further description.

6 As noted on behalf of the defendants, to some extent the orders sought go beyond the scope of rule 5.2. In any event, the evidence revealed that the only communications between the defendants and the sources were by email. In light of that evidence, the plaintiff submitted (in her written submissions in reply) that the Court need only compel the defendants to give discovery of those email communications.

Significance of the implied constitutional freedom

7 The articles discuss matters of government and politics. So much was common ground at the hearing (T85.10). They include consideration of Mr Fitzgibbon's political standing as a member of Federal Parliament and the appropriateness of his conduct in that office having regard to his alleged financial dealings with Ms Liu.

8 In those circumstances, the defendants contend that the remedy sought by Ms Liu is foreclosed by the implied constitutional freedom of communication on matters of government and politics recognised in the decision of the High Court in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

9 That was said to be so for two reasons. First, it was submitted that there is no power under rule 5.2 to grant the relief sought. The basis for that submission was that rule 5.2 unduly burdens the implied constitutional freedom. The defendants submit that, in order to preserve its validity, the rule must be read down so as to preclude its application to a case such as the present. It was put that, applying the principles stated in Lange , the rule could not validly extend to the case of a plaintiff seeking preliminary discovery from a journalist of the identity of a confidential source who has provided information constituting political communication or used in a publication constituting political communication.

10 Secondly, the defendants submit that, leaving aside the question of power, the application must be rejected in the exercise of the Court's discretion by reason of the application of the so-called newspaper rule considered by the High Court in John Fairfax & Sons Limited v Cojuangco (1988) 165 CLR 346.

11 The operation of the newspaper rule was described in that case as being "shrouded in uncertainty, as might be expected of a principle erected on shifting foundations" (at 351.9). The High Court noted that the rule had its origin in the practice of the English common law courts in defamation actions of refusing, in interlocutory proceedings, to compel a defendant to disclose his sources of information. The Court acknowledged (at 356-7) that although the rule does not apply in terms to applications for preliminary discovery, the policy considerations underlying the existence of the rule are "unquestionably factors to be taken into account in the exercise of the juridical discretion that [such an application] confers".

12 The defendants submitted in the present case that, in light of the implied freedom of political communication recognised in Lange , it should now be held that the effect of the newspaper rule is absolute in that it prevents the disclosure of a journalist's confidential source of information consisting of or used in discussion of matters of government or politics.

13 The defendants gave notice pursuant to s 78B of the Judiciary Act 1903 (Cth) of the constitutional matters raised by those contentions. The Attorney General for the State of New South Wales intervened in the proceedings pursuant to s 78A of the Act to make submissions on those matters.

14 I have concluded that there is no requirement flowing from the decision of the High Court in Lange to read rule 5.2 down in the manner contended for on behalf of the defendants. I have further concluded that, whilst its underlying considerations are plainly important in determining what is necessary to do justice between the parties, the newspaper rule should not be regarded as being of absolute effect in protecting the identity of a journalist's confidential source in cases of communication on matters of government and politics. My reasons for those conclusions are set out below.

Power

15 The defendants' first argument concerns the validity or application of rule 5.2 in so far as it may be understood to provide a remedy in cases concerning discussion of government and political matters using information provided to journalists by confidential sources.

16 An understanding of the significance in that context of the High Court's decision in Lange begins with the proposition that the authority for the enactment of valid statute law derives from the Commonwealth Constitution.

17 It is necessary in that context to understand the High Court's explanation in Lange of "implied freedoms" under the Constitution and the restraint they impose on legislative power. The decision in Lange was concerned with the correctness of defences pleaded in a defamation action. The impugned defences sought to defend the action on the basis that the matter complained of was published pursuant to a freedom guaranteed by the Constitution to publish material in the course of discussion of government and political matters. The defences had been pleaded by reference to the implied constitutional freedom of political discussion as understood from the earlier decisions of the High Court in Theophanous v Herald & Weekly Times [1994] HCA 46; (1994) 182 CLR 104 and Stephens v West Australian Newspapers Limited [1994] HCA 45; (1994) 182 CLR 211.

18 The Court held in Lange that the defences failed, since the Constitution itself creates no private right of defence. In the analysis leading to that conclusion, the Court accepted that freedom of communication on matters of government and politics is an indispensable incident of the system of representative government created by the Constitution. However, the Court explained that, by contrast with the position in the United States of America, the implied constitutional freedom so recognised confers no rights. The freedom is to be understood as being of negative implication, creating an area of immunity from legislative control.

19 As further explained in Lange , it follows that the right to a remedy, including a remedy under a law of a State, cannot be admitted if its exercise would infringe upon the freedom of communication on matters of government and politics required by the Constitution. A law that operated in that way would be invalid.

The test for validity

20 In Lange , the High Court postulated a two-limbed test for determining the validity of a law alleged to infringe the implied freedom (at 567):

First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people...If the first question is answered "yes" and the second question is answered "no", the law is invalid.

21 The formulation of the second limb of the test was subsequently revisited in Coleman v Power (2004) 220 CLR 1, where McHugh J expressed the view at [93] that it would have been clearer if expressed to ask "is the law reasonably appropriate and adapted to serve a legitimate end [in a manner] which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government (Gummow and Hayne JJ agreeing at [196]). His Honour explained that the test should be understood to require that both the end and the manner of its achievement be compatible with the constitutionally prescribed system of representative and responsible government.

22 McHugh J stated that the true test for validity was as stated by Kirby J in Levy v Victoria (1997) 189 CLR 579 at 646. Kirby J agreed (at [211]).

23 The test was expressed by Kirby J in Levy as follows:

does the law which is impugned have the effect of preventing or controlling communication upon political and governmental matters in a manner which is inconsistent with the system of representative government for which the Constitution provides? (emphasis added)

24 In the context of the present case, it is important to observe that the test assumes that a law may validly burden freedom of communication or prevent or control communication upon political and governmental matters to some extent. A law that does so is only invalid if it fails the second limb of the test.

25 The defendants noted that the validity of rules for preliminary discovery in light of the implied constitutional freedom has been raised, but not determined, on two prior occasions. In Nagle v Chulov [2001] NSWSC 9, the application failed at the threshold because there was no evidence to establish that any person provided information to the defendants in connection with the allegedly defamatory article (at [34]). Levine J accordingly held (at [99]) that it was not necessary to decide the constitutional issue. His Honour nonetheless ventured the tentative view, in the abstract, that the rule could be understood to be "appropriate and adapted" (referring to the second limb of the test in Lange ).

26 In NRMA v John Fairfax Publications Pty Limited [2002] NSWSC 563 Master Macready (as his Honour then was) found that the subject matter of the communications in question did not constitute discussion of political matters and thus, again, the constitutional question did not arise for determination.

27 The constitutional question squarely arises for determination in the present case.

Does rule 5.2 effectively burden the freedom?

28 The first question is whether rule 5.2 effectively burdens the implied constitutional freedom in its terms, operation or effect. The defendants acknowledge that the rule does not in terms prohibit or prevent communication about government or political matters. However, they submit that the rule, if able to be used to compel disclosure of the identity of a confidential source of political information (thus exposing the source to an action for damages), would clearly have a "chilling effect" on such communications between journalists and their sources and thus burden the freedom in its operation or effect.

29 Further, the defendants submitted that, if the rule were to permit an order to be made compelling a journalist to disclose a confidential source, the journalist would face the invidious choice of revealing the identity of the source or refusing to do so in contempt of court. The prospect of facing such a dilemma would be likely also to slow the free flow of political information for public discussion.

30 The Solicitor General submitted on behalf of the Attorney General that the rule does not burden the freedom of communication under the Constitution because the discretion embodied in the rule means that an order would only be made when the interests of justice so required. He compared the task of the court under rule 5.2 with the balancing exercise required under the law of contempt, where an established tendency to prejudice a criminal trial is weighed against the public interest in receiving the information in the publication. Thus in John Fairfax Publications Pty Limited v Doe (1995) 37 NSWLR 81, Kirby P said (at 110-111; Gleeson CJ agreeing at 90E):

But it would be a complete misreading of the recent development of constitutional law in Australia to suggest that the implied constitutional right of free communication deprives courts such as this, of the power and, in the proper case, the duty to protect an individual's right to a fair trial where it is, as a matter of practical reality under threat. Whatever limitations may be imposed by the constitutional development protective of free communication upon certain matters upon the law of contempt (for example, in terms of the scandalising of the courts) I could not accept that the constitutional implied right has abolished the longstanding protection of fair trial from unlawful or unwarranted media or other intrusion.

31 Similarly, the Solicitor General submitted that the High Court in Lange considered that, once the common law defence of qualified privilege was developed in the manner provided for in the judgment, the New South Wales law of defamation did not impose a burden on the freedom of communication on government and political matters. It was submitted on that basis that rule 5.2 does not burden the freedom of communication required by the Constitution, since it embodies a balancing exercise that takes the freedom into account.

32 In my respectful opinion, those contentions are more properly directed to the second limb of the test for validity in Lange (as clarified in Coleman v Power ). It seems to me that the first limb of the test sets a relatively low threshold, directing attention simply to the question whether the impugned law touches communication on political matters, whether in terms or in its operation or effect, in a way that burdens the freedom of such communication. The fact that the power is discretionary is an aspect of the manner in which the rule serves its end, which informs the question of compatibility with the maintenance of the system of government prescribed by the Constitution. That is the province of the second limb of the test.

33 In that respect, I note that the conclusion expressed in Lange was that the New South Wales law of defamation did not impose "an undue burden" on the freedom. The Court had already acknowledged earlier in its reasons that, in so far as the law of defamation requires electors and others to pay damages for the publication of communications concerning such matters, it effectively burdens the freedom.

34 The plaintiff submitted that rule 5.2 is not a law that is capable of burdening future political communication because it is a discretionary mechanism with no precedential value. I do not think that is an answer to the defendants' submissions on this issue. The significant consideration, in my view, is the fact that the law confers a power to compel the disclosure of a journalist's source. It is the existence of such a power rather than the manner of its exercise that is alleged to threaten free political communication. If the discretion could properly be exercised so as to compel disclosure, the effect in that instance would be the same as in the case of the application of a binding law.

35 For the same reason, I reject the plaintiff's submission that free communication cannot be burdened because it in fact happened in the present case. As I understand the decision in Lange , it directs attention to the capacity of the impugned law to burden the freedom. The fact that it has not done so in any individual case does not determine that question.

36 Just as the High Court in Lange accepted that the law of defamation burdens the freedom in so far as it requires electors and others to pay damages for publications amounting to political discussion, in my view it may readily be concluded that the existence of a power to compel a journalist to reveal a confidential source poses some threat to the freedom of political discussion required under the Constitution and may thus be seen effectively to burden the freedom to some extent.

Compatibility with the maintenance of the constitutionally prescribed system of government

37 The second limb of the test in Lange , as clarified in Coleman v Power (per McHugh, Gummow and Hayne JJ agreeing), is whether the law is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. As already noted, McHugh and Kirby JJ expressed a preference in Coleman v Power for the formulation taken from the judgment of Kirby J in Levy , which asks whether the impugned law has the effect of preventing or controlling communication upon political and governmental matters in a manner which is inconsistent with the system of representative government for which the Constitution provides.

38 It probably does not matter which formulation is adopted, provided it is understood that the test is concerned both with the end served by the impugned law and the manner in which the law serves that end. I will refer to the test, in shorthand, as the compatibility test.

39 In my view, the assessment of that issue must be approached in the recognition that the freedom from legislative curtailment of communication on matters of government or politics required by the Constitution is not absolute. As noted in Lange (at 561.8), it is limited to what is necessary for the effective operation of the system of representative and responsible government provided for by the Constitution.

40 The effective operation of that system will be adequately protected by substantial rather than absolute protection of many of its incidents. To put the matter another way, a law will not be invalid merely because it is capable of operating so as to curtail political discussion. To recognise that a law has that characteristic addresses only the first limb of the test in Lange . Consideration of the second limb calls attention to the manner in which the law serves its legitimate end and the compatibility of its doing so with the maintenance of the constitutional system of government. The maintenance of the constitutional system of government should not be regarded as the sole or paramount determinant of legislative power.

41 The Solicitor General noted that there are other laws that confer substantial but not absolute protection on journalists' sources. Such laws recognise that there is a strong public interest in the free provision of sensitive information to journalists, and that sources are more likely to provide such information if their confidentiality is protected.

42 Thus the newspaper rule operates as a judicial practice of refusing to compel discovery by a journalist of his or her confidential sources. It does not amount to a privilege or immunity, and it has always been the case that disclosure of a source will be compelled when it is necessary in the interests of justice: see McGuinness v Attorney General (Vic) (1940) 63 CLR 73 at 104-105 per Dixon J; British Steel Corp v Granada Television Limited [1981] AC 1096 at 1169 per Lord Wilberforce. (In considering this aspect of the Solicitor General's submissions, I have not overlooked the defendants' submission that the newspaper rule should now be held to be of absolute effect following the decision in Lange. )

43 Similarly, the Solicitor General noted that s 126B of the Evidence Act 1995 confers a discretion to exclude evidence which, if adduced, would disclose a protected confidence. There is, however, no absolute privilege or immunity in respect of such evidence.

44 The defendants' submissions have not persuaded me that the constitutionally prescribed system of government requires absolute protection of journalists' sources. In Lange , acknowledging that the law of defamation in this State effectively burdens the constitutional freedom, the High Court considered that the critical question was whether the laws of defamation were "reasonably appropriate and adapted to serving the legitimate end of protecting personal reputation without unnecessarily or unreasonably impairing the freedom of communication about government and political matters protected by the Constitution" (at 568).

45 In considering that issue the High Court noted, uncontroversially, that protection of reputation is not incompatible with the implied freedom, expressing the view that the constitutionally prescribed system of government would in fact be adversely affected by an unqualified freedom to defame people involved in government or politics. The appropriate balance was found in the recognition of a category of qualified privilege in respect of publication of political discussion to a wide audience, the defence on that basis being conditional upon a requirement of reasonable conduct on the part of the publisher. With that development, the High Court was satisfied that the law of defamation in this State could not be said to place an undue burden of freedom of political communication.

46 By similar reasoning, I am satisfied that rule 5.2 satisfies the compatibility test. The defendants acknowledge that the rule serves the legitimate end of achieving justice by providing the opportunity for a plaintiff to prosecute a claim against an alleged wrongdoer where he or she would otherwise be left without remedy.

47 I accept, as submitted by the Solicitor General, that the end of providing a procedural mechanism to facilitate the bringing of proceedings is not incompatible with the maintenance of the constitutionally protected system of responsible and representative government. Indeed, an absolute protection for journalists' sources would in my view threaten the constitutionally prescribed system of government, just as would an unqualified freedom to defame people involved in government or politics.

48 It is in this context, in my view, that the existence of the discretion under rule 5.2 is relevant. As noted by the Solicitor General, the exercise of the discretion is governed by the newspaper rule, the High Court having acknowledged in Cojuangco (at 357) that the policy considerations underlying the existence of the rule must be taken into account in the judicial exercise of the discretion conferred by the rule.

49 As noted by the Solicitor General, the discretion embodied in rule 5.2 means that an order for disclosure of a confidential source of information for political discussion would only be made when the interests of justice so required. The obligation to include consideration of the policies underlying the newspaper rule in that assessment ensures that the rule is adapted to serving its object in a manner which is compatible with the implied requirements of the Constitution.

50 The defendants submitted that it would be wrong to hold that the test of compatibility is met on the basis of a requirement to take the implied constitutional freedom into account as a factor relevant to the exercise of the Court's discretion. Mr Blackburn submitted that such an approach was expressly forbidden by the Chief Justice in Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 199 at [20].

51 I do not think the submissions put on behalf of the plaintiff or the Attorney General invited an approach inconsistent with the principles there stated. Gleeson CJ said at [20]:

But the first issue, which was whether the respondent, on the facts alleged, had a right to prevent the appellant making such use of the film as it pleased, raised a question of principle. The answer must be capable of application in a variety of circumstances. As the arguments on either side were developed, they invoked concepts of unconscionability, free speech, rights of property, and privacy. In relation to free speech, implied rights said to be protected by the Constitution were called in aid. These are all legitimate matters to be taken into account in identifying a principle. But they are not commensurate. The Constitution's protection of freedom of political communication, for example, precludes the curtailment of such freedom by the exercise of legislative or executive power. It restricts law-making power and executive action. And, because the common law of Australia conforms to the Constitution, it has an important role in the formulation of common law principle. But it is not a mere balancing factor in a discretionary judgment as to the preferred outcome in a particular case, to be given such weight as to a court seems fit.

52 For completeness, Mr Blackburn also drew my attention to what was said by Kirby J in that case at [209] to [210], which he apprehended may have been inconsistent with what was said by the Chief Justice:

[209] Nevertheless, in the case of discussion (including broadcasts) concerning governmental and political matters, impliedly contemplated in the operation of the representative democracy established by the Constitution, a surer foundation exists in the Constitution for restraint in the provision of an interlocutory injunction. No principle could govern the exercise of such a judicial discretion which was incompatible with the Constitution. In my view, when relevant, the implication spelt out in Lange is a consideration to be taken into account when a judge or a court is invited to grant an interlocutory injunction.

[210] This is an unsurprising conclusion, given that an interlocutory injunction is a judicial order made under statutory power by a court of the Australian Judicature. Indeed, it would be surprising if such a court, in making such an order, were at liberty to ignore or neglect such a consideration. Were that to be done, the law as applied by the judge might indeed contradict the constitutional requirements. And that is what Lange holds cannot occur.

53 Relevantly for present purposes, the remarks of the Chief Justice were directed to the unexceptionable proposition that a law which is invalid because it curtails the freedom of political communication protected by the Constitution cannot be saved by the existence of a discretion in the exercise of which the freedom may be taken into account.

54 Upon analysis, I do not think Kirby J is to be taken to have said anything different. It is clear enough, in my view, that Kirby J was assuming the validity of the relevant law, and was merely observing that (in the case of a valid law) the Constitutional protection afforded to freedom of political communication is nonetheless a factor that can and should guide the exercise of judicial discretion.

55 It does not follow from the remarks of the Chief Justice that rule 5.2 is invalid. His Honour's remarks were directed to laws that exceed the Constitutional restriction, that is (necessarily), laws that do not meet the compatibility test. In my view, the existence of a discretion which requires the court to take freedom of political communication into account is capable of informing the conclusion whether a particular law meets the compatibility test. In some instances, the existence of such a discretion would not result in a valid law. For example, if a law made it a criminal offence to criticise the policies of the government, a judicial discretion whether to enter a conviction upon proof of such an offence would not save the law.

56 In cases of less immediate or direct burden on the freedom, I see no reason why a statutory provision may not properly be adapted to serve its legitimate end in a manner compatible with the constitutional freedom by the mechanism of conferring a discretionary power to be exercised judicially by the court.

57 The effect of the defendants' submissions on this issue was that, although rule 5.2 serves a legitimate end, it could only be regarded as being reasonably appropriate and adapted to doing so in a manner compatible with the maintenance of the constitutionally prescribed system of government if it were never able to be used to compel a journalist to reveal a confidential source in a case involving political discussion.

58 One difficulty with that submission is that it implicitly assumes the reliability and integrity of every source. Experience tells that is not a reasonable assumption. In my view, the constitutionally prescribed system of government is likely to be adversely affected by the automatic exclusion of all confidential sources of political information, including sources of lies and misinformation, from the operation of the rule. Absolute immunity or privilege ordinarily attends processes that are open to public scrutiny, such as parliamentary debate or legal proceedings. It is difficult to see such protection as being appropriate for the confidential communication of political information intended for publication in the mass media.

59 In any event, I am not satisfied that it is necessary, in order to maintain the constitutionally prescribed system of government, to protect from the reach of preliminary discovery every communication between a journalist and a source of political information who wishes to remain confidential. The newspaper rule (as it presently applies) will ordinarily protect the source, unless disclosure of his or her identity is necessary in the interests of justice.

60 The dilemma faced by the journalist can to some extent be avoided in the negotiation of the undertaking of confidentiality, by an indication that the identity of the source will not be protected in the case of deliberately false information. I accept that practical difficulties arise at that point but it does not follow that absolute protection is what is required in accordance with the Constitution.

61 I am satisfied that rule 5.2 is reasonably appropriate and adapted to serve the legitimate end of providing a mechanism for the identification of an alleged tortfeasor for the purpose of commencing legal proceedings in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. In my view, the fact that the power is discretionary and the requirement to take into account the considerations underlying the newspaper rule in the exercise of the Court's discretion achieve the required compatibility.

Significance of the implied freedom for the newspaper rule

62 For substantially the same reasons, I reject the submission that the newspaper rule should now be held to be of absolute effect in the case of a confidential source that has provided information constituting or for use in political discussion. Indeed, it seems to me that the decision in Lange militates against that conclusion.

63 Part of the rationale implicitly underlying the newspaper rule is that, in publishing the information received from the source, the newspaper puts itself forward as a defendant whilst shielding the source. However, as already explained, the decision in Lange recognised a greater measure of protection for the newspaper than had previously been understood to exist. A corollary of the recognition in Lange of a qualified privilege in respect of political discussion is that, provided that the conduct of the journalist was reasonable in the circumstances, he or she will have a defence that may not necessarily be available to the source.

64 If the newspaper rule were considered now to be of absolute effect in the case of a source of information constituting or for use in political discussion, the source would in effect automatically come within the shield of that defence regardless of the reasonableness or honesty of his or her conduct. As recognised in Lange , the existence of such an unqualified freedom to defame people involved in government or politics is inimical to the maintenance of the system of government required by the Constitution.

65 Thus it seems to me that the decision in Lange provides all the more reason for recognising that the newspaper rule is a practice that guides the exercise of interlocutory power, and an important consideration in the exercise of the discretion whether to grant preliminary discovery, but not a rule of absolute effect (in cases of political discussion) to the exclusion of any other discretionary consideration. In my view, that is the basis on which the plaintiff's application is to be determined.

Parties' written submissions

66 Before turning to the substance of the application, I should record one matter. After the conclusion of the hearing, the defendants provided written submissions "in response to the plaintiff's reply submissions". The plaintiff objected to my considering those submissions as going beyond the leave granted to the parties at the conclusion of the hearing. It was submitted that the further submissions either reiterated submissions put by the defendants in chief or mounted arguments that should have been so put.

67 Whilst there may have been some force in that complaint, I took the view that, rather than spending further time determining whether that was so, the prudent approach was to have regard to the defendants' further submissions. Notwithstanding that decision, I did not consider it necessary to afford the plaintiff a further opportunity to respond.

Application of rule 5.2

68 Rule 5.2 is set out at the outset of this judgment. The rule operates to confer a discretionary power in circumstances where it appears to the court that the requirements of sub-rule 5.2(1) are met.

69 The parties in the present case were in dispute as to the threshold requirements that must be established before the discretion is enlivened. In Roads and Traffic Authority of New South Wales v Australian National Carparks Pty Ltd [2007] NSWCA 114, the Court of Appeal identified two threshold requirements stated by the rule (at [14]-[15] per Mason P; McColl JA and Bell J agreeing at [34] and [35] respectively; citations omitted):

First, the applicant must be unable sufficiently to ascertain the identity or whereabouts of the intended defendant despite having made reasonable inquiries. What is reasonable is a question of fact in all the circumstances. The availability of other means of ascertainment (eg resort to the FOI Act) does not in itself make it unreasonable to claim an alternative remedy under the rules. The cost, delay and uncertainty of alternative measures is relevant to the rule's 'reasonable inquiries' component.

Secondly, the applicant must show that the respondent to the application 'may have information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts' of the prospective defendant.

70 The defendants submitted that the plaintiff must satisfy an additional threshold requirement that the purpose of her application for preliminary discovery is to commence proceedings against the prospective defendants. They submitted that the plaintiff had wrongly addressed the issue of intention to sue as if it were merely a factor to be taken into account in the exercise of the court's discretion.

71 In RTA v Australian National Carparks , Mason P referred to intention to sue in terms indicating that it should be regarded as a significant discretionary factor but not a third threshold requirement. His Honour said (at [12]):

Rule 5.2(1)(a) implies that the applicant intends to sue the person whose identity is sought. Demonstration of such intention is obviously pertinent to a favourable exercise of the discretion to order preliminary discovery (Re Application of Cojuangco (1986) 4 NSWLR 513 at 521). This does not mean that such intention must be immutably fixed or unqualified.

72 The defendants acknowledged those remarks but submitted that it is clear from the context and the reference to the decision at first instance in Cojuangco that Mason P "meant to include the establishment of purpose or intention to sue as part of his encapsulation of the threshold requirements for the enlivening of the discretion, and thus as a condition precedent to its exercise" (written submissions at paragraph 8).

73 In Cojuangco at first instance, Hunt J said at 521 that an applicant for preliminary discovery under part 3 of the Supreme Court Rules (which was in the same terms as rule 5.2 of the UCPR) "must intend to commence proceedings against the person identified by the respondent before an order for preliminary discovery will be made". The focus of those remarks was the distinction between part 3 and a bill of discovery in Equity, which his Honour observed "lies in the purpose for which the information must be sought". His Honour observed that, in the case of a bill of discovery in Equity it is sufficient that the plaintiff has a cause of action (whether or not he intends to pursue it) and that discovery is necessary to enable justice to be done.

74 The remarks of Hunt J and the defendants' submissions on this issue refer to purpose and intention as if they were the same thing. I would respectfully suggest that a distinction should be drawn between the two. It may be accepted that the absence of any intention to sue the "person concerned" would ordinarily, and perhaps invariably, be fatal to an application for preliminary discovery. That is because the absence of any such intention would indicate that the application had been brought for a purpose foreign to the purpose of the rule, which is to facilitate the commencement of such proceedings. Such an application would be liable to be dismissed as an abuse of process.

75 Thus an application for preliminary discovery commenced for a proper purpose would be accompanied by some intention to sue the person concerned. However, as acknowledged in RTA v Australian National Carparks , that intention need not be "immutably fixed or unqualified". There is good reason for that concession. An applicant for preliminary discovery would ordinarily wish to consider the identity (or indeed the whereabouts) of the person concerned before forming a firm intention to commence proceedings against that person. The identity of the person may inform the strength of the likely defences to the claim and, thus, the prospects of the plaintiff's success in the litigation. It may transpire that the person concerned was a person whom the applicant would not wish to sue, for personal, commercial or other reasons.

76 For those reasons, I am not persuaded that it was through any infelicity of expression that Mason P failed to include intention to sue in the list of threshold requirements. In my view, a plaintiff's state of mind as to the future commencement of proceedings against the person concerned is appropriately regarded as a pertinent factor in the exercise of the discretion, but not as a condition precedent to the exercise of the power, provided the application is brought for a proper purpose.

77 On that basis, the correct approach in my view is as follows:

(a) an application brought for a purpose other than for the purpose of commencing proceedings against the person concerned would be liable to be dismissed as an abuse of process;

(b) an application brought by a person who had no intention of commencing proceedings against the person concerned (that is, who would rule out the prospect of commencing proceedings) would fall within that category;

(c) subject to those matters, the applicant's state of mind concerning the commencement of proceedings against the person concerned should otherwise be considered in the manner stated by Mason P at [12] in RTA v Australian National Carparks , that is, as being "obviously pertinent to a favourable exercise of the discretion". The existence of a desire to obtain further advice or information upon learning the identity of the person concerned before deciding whether to sue should not ordinarily be considered fatal to the favourable exercise of the discretion.

78 I turn to consider whether the discretion to grant preliminary discovery is enlivened in the present case.

Reasonable inquiries

79 The first issue is whether the plaintiff has made reasonable inquiries to ascertain the identity of the persons concerned. As stated in RTA v Australian National Carparks at [14], what is reasonable is a question of fact in all the circumstances.

80 The application arises from the publication, in two articles in The Age , of information provided to the defendant journalists evidently by one or more of three people (to whom I refer throughout this judgment as the sources).

81 The cause of action in aid of which the application is brought is defamation. At an early stage the plaintiff's legal representatives also made reference to a potential claim for breach of confidence but that was not ultimately pursued as a basis for the present application.

82 An important consideration is the fact that any cause of action the plaintiff may have in defamation against any of the three sources is critically dependent upon their having published the information in question to the journalists for republication or otherwise being liable for the publication of the two articles in accordance with the principles stated in Webb v Bloch (1928) 41 CLR 331 at 363-366; see also Sims v Wran [1984] 1 NSWLR 317 at 320.

83 It is not in dispute that the information with which the plaintiff is concerned was derived from a bundle of 135 pages alleged by the defendants to be the plaintiff's personal papers obtained by The Age . The plaintiff's application rests in particular on the use of three documents from among those papers (referred to in this judgment as the handwritten documents):

(a) a handwritten list in the Chinese language of 22 names (exhibit J; translated at exhibit RJB-35 to the affidavit of the second defendant, Mr Richard Baker, sworn 1 December 2010). The defendants contend that the list was prepared by the plaintiff in 1997-1998 to record payments (including expenses and gifts) given by her to the individuals listed. Its significance for the purpose of the two newspaper articles is that it includes reference to Mr Joel Fitzgibbon;

(b) two letters purportedly sent by the plaintiff to senior bank officers bearing handwritten notes evidently attributed to the plaintiff (exhibits D and G; translated at exhibits RJB-21 and RJB-38 to Mr Baker's affidavit).

84 As already noted, the plaintiff alleges that those documents are forgeries or have otherwise been falsely attributed to her. In the case of the two letters, the documents purport on their face to be the plaintiff's documents, each bearing a signature attributed to her. In the case of the handwritten list, the attribution to the plaintiff is implicit. Accordingly, the plaintiff seeks to ascertain who provided the documents themselves and any description as to what they were.

85 The steps taken on behalf of the plaintiff to ascertain the identity of those persons are set out in the affidavits of the plaintiff's solicitor, Ms Elaine Quinn, sworn 2 July 2010, 1 October 2010 and 8 February 2011. In short, the plaintiff first endeavoured to ascertain the identity of the journalist's sources from the defendants. The defendants having refused to provide that information, inquiries were then made of the legal representative of the bank officer to whom one of the letters was addressed, the bank, a solicitor acting for Mr Joel Fitzgibbon and another solicitor.

86 The evidence of the defendants in the proceedings established that the only communication between the defendant journalists and the sources was by email. The detail of the emails is considered below. It is sufficient for present purposes to observe that most of the communication was between the second defendant, Mr Baker, and one of the three sources, to whom Mr Baker refers as the contact. Separately, however, the 135 pages alleged to be the personal papers of the plaintiff were sent directly to Mr Baker by one of the other two sources as attachments to seven separate emails.

87 The reasonableness of the inquiries undertaken by the plaintiff to ascertain the identity of the two people who sent emails directly to Mr Baker and the third source referred to in his evidence is informed by the cost, delay and uncertainty of alternative measures: see RTA v Australian National Carparks at [14]. An important consideration in the present case is the indisputable fact that, whatever other information may have been available from other sources, the defendants know with certainty (and perhaps exclusively) the identity of the persons who sent the emails. Further, unless the defendants or the sources have themselves told others who sent the emails, any information on that issue held by any other person may ultimately be uncertain.

88 In that respect I accept, as submitted by Mr McClintock on behalf of the plaintiff, that due regard must be had to the content of the requirement insofar as it points to an applicant who is unable, despite reasonable inquiries, sufficiently to ascertain the identity or whereabouts of a person for the purpose of commencing legal proceedings (Mr McClintock's emphasis).

89 Having regard to the specificity of the information sought by the plaintiff (namely, the author of a series of emails sent to the defendants, the person who sent the seven emails attaching the 135 pages alleged to be the plaintiff's personal papers and the third source evidently referred to in the emails), the relatively limited inquiries undertaken by the plaintiff of persons other than the defendants were nonetheless reasonable, in my view.

Is the plaintiff unable sufficiently to ascertain the identity of the persons concerned despite her inquiries?

90 It is necessary in this context to consider the evidence (and more importantly the absence of some evidence) concerning Mr Donald Junn. Mr Junn is a solicitor who has previously been retained by the plaintiff to act in various matters.

91 The evidence concerning Mr Junn fell into three categories. First, when the second defendant, Mr Baker, was preparing the articles for publication in The Age , he contacted Mr Junn with the hope of his being a conduit to the plaintiff to obtain her response to the allegations Mr Baker proposed to publish. Mr Baker's affidavit evidence included a detailed account of his conversations with Mr Junn, which Mr Baker took to be corroborative in many respects of the information provided to him by the sources. I initially rejected that evidence, for the reasons stated in my earlier judgment: Liu v The Age Company Ltd [2011] NSWSC 53 at [38] to [47].

92 Secondly, the plaintiff had, prior to the hearing of the proceedings, served an affidavit sworn by Mr Junn which ultimately was not read in the proceedings. Mr Blackburn tendered certain paragraphs of that affidavit in the defendants' case. I rejected the tender for the same reasons: see my earlier judgment at [48].

93 Paragraphs 37 to 41 of Mr Baker's affidavit deposing to his conversations with Mr Junn were later admitted, following Mr McClintock's cross examination of Mr Baker. However, the use to be made of that evidence was limited by direction under s136 of the Evidence Act to establishing what Mr Baker had in his possession and what information he took into account in the preparation of the two articles. It was not admitted for the purpose of establishing the truth of its contents: see my earlier judgment at [30] and T368.1-369.5.

94 Thirdly, in the course of preparing for the hearing of these proceedings, senior counsel for the plaintiff spoke to Mr Junn. Those discussions evidently led Mr McClintock to conclude that the person who provided the 135 pages to the defendants (alleged to be the plaintiff's personal papers) was probably Mr David Liu. As events transpired, Mr McClintock was called upon to swear an affidavit deposing to that opinion. It is not necessary for present purposes to recite the circumstances in which that occurred, save to explain that the affidavit was sworn in opposition to an application by the defendants to have returned to them confidential material inadvertently disclosed in the exhibits to an affidavit sworn by Mr Baker: see my earlier judgment at [5] to [24].

95 Following the resolution of that application, Mr McClintock understood that he was not at liberty to disclose to his client the identity of the person he believed may have been the source of the material. During the hearing, however, the defendants indicated that they did not consider Mr McClintock to be so constrained: T380.10 to T380.37. Mr McClintock then sought an opportunity to obtain instructions from his client to "ask her whether she has any knowledge of the person in question". Following that adjournment, Mr McClintock informed the Court that he did not "need to recall" his client, but that he did need to read the further affidavit of Ms Quinn sworn 8 February 2011.

96 On the strength of those events, the defendants submitted that the Court is entitled to infer "that the evidence given of the enquiries of Mr Junn, and the information received [presumably a reference to the information received by Mr McClintock], would not have been of assistance to the plaintiff in proving the matters she needs to prove in order to be entitled to an order, namely that she is unable, having made reasonable enquiries, to identify the sources and their whereabouts" (paragraph 13 of the defendants' final submissions).

97 Indeed, the defendants went so far as to assert (in the following paragraph of the submissions) that the plaintiff has concealed from the Court the outcome of her inquiries of Mr Junn. I understood that submission to be derived from the decision of the plaintiff's legal representatives not to call Mr Junn to give evidence, the fact that the plaintiff opposed the defendant's tender of Mr Junn's affidavit and Mr McClintock's affidavit on the substantive application, and the fact that Mr McClintock called no further evidence after consulting with his client as to the conclusion he drew from his discussion with Mr Junn.

98 It is necessary to analyse those contentions carefully. First, I accept without hesitation that the failure to call Mr Junn after an affidavit sworn by him had been served on the defendants was due to a forensic decision that his evidence would not assist the plaintiff. I do not think, however, that I can properly conclude that the forensic decision was directed to the issue whether, having made reasonable inquiries, the plaintiff was able sufficiently to identify the sources and their whereabouts. There is another more likely explanation for the forensic decision.

99 A consideration of the contents of the conversation with Mr Junn deposed to by Mr Baker readily explains Mr McClintock's decision not to call Mr Junn as a witness. The conversations (assuming they occurred) reveal that, without having consulted the plaintiff, Mr Junn imprudently volunteered a series of damning statements to Mr Baker as to the content of his proposed article. In doing so, Mr Junn does not appear to have paid the smallest regard to the interests of his former client.

100 I should emphasise that it is neither necessary nor appropriate in the present proceeding to form or express any view as to whether Mr Baker's account of the conversation is accurate, or whether the information he was given by Mr Junn was reliable. What is important is that, whether true or false, the statements made were imprudent and ill-considered. If anything is clear to me in this case, it is the wisdom of Mr McClintock's decision not to call Mr Junn in his case.

101 As already noted, an additional basis for the inference contended for by the defendants is Mr McClintock's statement, after he obtained instructions from his client as to his opinion that Mr David Liu was the likely source, that he did not need to recall his client. Regrettably, it is necessary in that context to say something of the conduct of counsel in this case. For reasons I do not understand, the hearing of the proceedings was attended by an unusual level of acrimony between senior counsel for the plaintiff and senior counsel for the defendants. The transcript records a number of occasions on which I implored both counsel to refrain from taking rhetorical shots at each other and to confine their attention to the legal and factual issues in the case.

102 Fortunately for both Mr Blackburn and Mr McClintock, I have more respect for each of them than either demonstrated toward the other during the hearing. It is appropriate to note my reason for recording that fact. It is implicit in the defendants' submission that, when Mr McClintock informed the Court that he did not need to recall his client, he was deliberately concealing evidence relevant to the question whether the plaintiff had identified the sources (or one of them) sufficiently for the purpose of commencing legal proceedings.

103 I have no hesitation in rejecting that proposition. I have no doubt that, in the event that the plaintiff had ratified Mr McClintock's opinion as to the likely source with sufficient certainty to sustain the commencement of legal proceedings, Mr McClintock would not have concealed that information from the Court under the guise of a forensic decision. The more likely explanation of Mr McClintock's statement that he did not need to recall his client is that the view was formed within the plaintiff's camp that Mr McClintock's opinion, whether or not shared by his client, did not provide a sufficient basis for commencing proceedings against Mr David Liu on the ostensible premise that he was the person who provided the relevant documents or information to the defendants.

104 It may be that David Liu will in due course be named as a defendant. However, I have no doubt that, had the plaintiff identified him with sufficient certainty on the strength of whatever information Mr McClintock received from Mr Junn, Mr McClintock would not have concealed that information from the Court.

105 In those circumstances, I am not persuaded that there is a sufficient basis to infer that Mr Junn's evidence would not have been of assistance to the plaintiff in proving that she is unable sufficiently to identify the sources for the purpose of commencing legal proceedings. My conclusion on that issue is reinforced by the likelihood that the only people who know for certain who provided the information to the defendants are the sources and the defendants. Mr Baker did not say in his evidence that he had told Mr Junn who the sources were, and it is extremely unlikely that he would have. Any opinion Mr Junn (or for that matter Mr McClintock) may hold on that issue is likely to be a matter of speculation: cf Morton v Nylex Limited [2007] NSWSC 562 at [35] per White J.

106 In all the circumstances, I am satisfied that the plaintiff is unable sufficiently to ascertain the identity of the intended defendants for the purpose of commencing proceedings against them despite having made reasonable inquiries.

The defendants' possession of documents

107 At the hearing of the proceedings, it was effectively conceded on behalf of the defendants that they have possession of documents that tend to assist in ascertaining the identity (and, perhaps to a lesser extent, the whereabouts) of the sources (see T434.14 to T434.20). I do not think there can be any doubt as to that proposition, having regard to the evidence of Mr Baker.

Purpose and intention

108 I do not think there is any basis for concluding that the application has been brought for an improper purpose.

109 For the reasons explained above, I consider the decision of the Court of Appeal in RTA v Australian National Carparks to be authority for the proposition that demonstration of an intention to sue is not a condition precedent to the exercise of the Court's power under rule 5.2 but rather a factor relevant to the exercise of the Court's discretion. In case that conclusion is wrong, it is appropriate to indicate that I am satisfied that the plaintiff does intend, subject to appropriate qualifications, to commence proceedings against those persons.

110 In her second affidavit, Ms Quinn gave evidence as to her instructions that the plaintiff intends to bring "such legal proceedings as are available and appropriate against such person or persons who forged or otherwise falsified the documents or otherwise supplied them to the defendants". The defendants submitted that the "presumably intentional ambiguity" in the phrase "available and appropriate" means that it "necessarily falls short of establishing the requisite purpose". I disagree. Indeed, I do not understand how a person could responsibly form any firmer intention in respect of the commencement of proceedings for defamation against an unknown person.

111 The decision whether to commence such proceedings would require consideration of many factors turning on the identity of that person. The identity of the person could be relevant to the issue of publication (for example if it transpired that the person who transmitted the seven emails attaching the 135 pages was an innocent disseminator), the issue of defences and non-legal considerations such as the likely resources of the person to defend an action for defamation, their likely ability to meet any verdict and whether for any reason of past history the plaintiff would not wish to sue that person.

112 Accordingly, I do not think the plaintiff's concession to the need to consider the availability and appropriateness of bringing proceedings against the persons concerned, once their identity is known, derogates from her expressed intention to commence legal proceedings against those persons.

113 The sincerity of the plaintiff's intention is to some extent confirmed by the fact that she has in fact now filed a statement of claim by the device of naming the defendants as John Doe 1, 2 and 3. Accordingly, if demonstration of an intention to sue is a condition precedent to the exercise of the Court's discretion, it is satisfied, in my view.

114 For those reasons, it appears to me that the plaintiff has satisfied the threshold requirements of rule 5.2. Accordingly, I turn to consider whether the discretion should be exercised favourably to the plaintiff in the present case.

Discretionary considerations

115 As already explained, in an application against a newspaper or a journalist seeking disclosure of a confidential source, although the newspaper rule does not apply in terms, the policy considerations underlying that rule are strong factors against the favourable exercise of the discretion. The High Court held in Cojuangco at 357.4 that, in such a case, the plaintiff must show that the order sought is necessary in the interests of justice, that is, that the making of the order is necessary to provide her with an effective remedy in respect of the actionable wrong of which she complains.

Does the plaintiff have a demonstrable claim?

116 The plaintiff acknowledged that it is pertinent in that context for the Court to consider the apparent strength of the actionable wrong on which the application is founded, that is, whether the plaintiff has a demonstrable claim.

117 The application is founded upon a claim in defamation against the sources. The claim comprehends both the publication by the sources to the defendants and, separately, the publication by the defendants of various newspaper articles using the material published by the sources.

118 The defendants did not dispute that the newspaper articles convey, or are at least capable of conveying, defamatory meanings concerning the plaintiff. Their submissions focused, rather, on the likelihood that the sources would be held liable for publication of the articles and on the issue of the defences likely to be available to the defendants and the sources respectively.

119 As to the issue of the sources' likely liability for publication of the articles, an interesting question arises. The plaintiff's claim is based on the use by the defendant journalists of the three particular documents identified above. The email correspondence between the sources and the journalists which resulted in the provision of that material to the defendants was admitted as evidence in the proceedings with the names of the sources and other identifying information redacted. That correspondence discloses that the 135 pages alleged to be the personal papers of the plaintiff were provided to the defendants after a 10-month negotiation. The correspondence reveals that the contact was endeavouring to sell the papers, and was reluctant to supply them until payment had been received, whereas the defendants were refusing to make any payment until they saw the material in question. The exchange developed into something of a Mexican stand-off.

120 Ultimately, the contact agreed to provide the papers against the hope of later payment if they proved useful to the defendants. However, shortly after the papers were sent to the newspaper, in an email dated 31 January 2010, the contact informed Mr Baker that the attachments had been sent in a rush and should not have included "Helen's handwritten papers". The contact then withdrew his previous requests for payment and said:

how to handal (sic) your artical (sic), is your business, just not mention Helen's handwritten please.

121 In a series of subsequent emails, the contact made various other requests in respect of "Helen's handwritten". Those included an email dated 1 February 2010 in which the contact sought Mr Baker's word that the newspaper "won't publish Helen's handwritten please".

122 In my view, the requests not to mention or to publish "Helen's handwritten" plainly were references to "Helen's handwritten papers" identified in the first of the emails. There was some debate at the hearing as to whether that meant handwritten papers belonging to Helen (not necessarily being in her own handwriting) or, conversely, papers in Helen's handwriting. Ultimately, I have concluded that it is not necessary or indeed possible to determine that question.

123 Curiously, Mr Baker initially construed the request not to publish "Helen's handwritten" as being confined to the appearance of the handwriting (or perhaps the fact that some of the documents were handwritten) rather than being a request not to publish the handwritten documents included among the 135 pages. On that premise, Mr Baker contended that he was free to disclose the contents of the handwriting, provided he did not publish or reveal the existence of the handwriting itself. I will return to that issue.

124 The defendants submitted that if, conversely, the contact's request is to be construed as a request not to publish the contents of "Helen's handwritten papers", there is a serious question as to whether the plaintiff has a cause of action against the sources, since it would be difficult for her to advance a case based on republication of those documents if the sources did not intend for the documents to be published and had in fact expressly requested that they not be.

125 The first answer to that submission is that the plaintiff seeks to prosecute a cause of action not only for the republication of the contents of the documents in the newspaper articles but also for the original publication by the sources to the defendants. Publication to the newspaper due to inadvertence would not be an answer to the cause of action based on the initial publication. (The fact that the contact was requesting the newspaper not to publish the material creates a further complication, considered separately below.)

126 In any event, for the purpose of a claim based on republication, it would be enough for the plaintiff to establish that the documents were provided to the defendants in circumstances in which republication was the natural and probable consequence of the provision of the information to the defendants. In my view, it would be open to the plaintiff to argue that republication by the defendant journalists was the natural and probable consequence of the inadvertent provision of the documents in question. It may be noted that that is what in fact occurred, that is, the defendant journalists did republish the content of the handwritten papers, notwithstanding the clear indication from the contact that those papers had been sent to the defendants through inadvertence.

127 Accordingly, I am satisfied that the plaintiff has a demonstrable claim for defamation against the sources. The further issues raised by the defendants as to the defences likely to be available to them and to the sources are considered below.

The "effective remedy" consideration

128 As noted in Cojuangco at 357.5, a court will refuse an order for preliminary discovery in respect of a defamatory publication if it appears that the applicant has an effective remedy against the newspaper or journalist without the necessity for making such an order. In that case, the High Court upheld the decision of the primary judge, Hunt J, that the applicant did not have an effective remedy against the newspaper because the defence of statutory qualified privilege was "open to be pleaded and might well succeed" (at 357.7).

129 It is clear from that passage of the judgment that the position would have been otherwise had the journalist relinquished the statutory qualified privilege defence. At the hearing of these proceedings, Mr McClintock informed me that that is what occurred when the Cojuangco proceedings came back before Hunt J and that, on that basis, his Honour did not order disclosure (see T406.37). Perhaps inconsistently, the defendants informed me that the plaintiff in Cojuangco never sued the publisher, "consistent with" his belief that he had no effective remedy against it (see final written submissions at paragraph 51 and T438.4). In any event, it is plain from the judgment at 357.5 that the High Court considered that, if the newspaper and the journalist were to relinquish any qualified privilege defence, the making of an order for preliminary discovery would not be considered necessary in the interests of justice.

130 It is plainly open to the defendants in the present case to plead the statutory defence of qualified privilege under s 30 of the Defamation Act 2005 and the common law defence of qualified privilege in respect of publication of political discussion to a wide audience recognised in Lange . The principal question is whether such defences might well succeed.

131 In the case of both the statutory defence and the defence at common law, the defendants will have to establish that their conduct in publishing the matters complained of was reasonable in the circumstances. That is likely to be the critical issue in determining the success of either defence.

132 The defendants do not relinquish either defence and staunchly defend their publications. They submit, however, that an order for preliminary discovery is not necessary to provide the plaintiff with an effective remedy, primarily for two reasons.

133 First, it was noted that "an effective remedy" does not mean a cause of action against the newspaper which must succeed. What is required is consideration as to whether there is any defence available to the newspaper or the journalist which would not be available to the source.

134 The defendants noted that the plaintiff's contentions as to the issue of effective remedy implicitly assume not only that the documents are forgeries or have otherwise been falsely attributed to the plaintiff, as contended by her, but also that the sources had knowledge of the falsehood. The defendants submitted that there is no evidence that any one of the sources is a person who has forged or otherwise falsified the documents or who was on notice of any such falsification. On that basis, it was submitted that the plaintiff's implicit assumption that the qualified privilege defences would not be equally available to the sources cannot be sustained.

135 In my view, that submission sets the bar too high for an applicant for preliminary discovery. As a matter of common sense, it is difficult to see how the plaintiff could have adduced any evidence that any one of the sources is a person who has forged or otherwise falsified the documents when she does not know who the sources are. Nonetheless I accept that it is appropriate for this purpose to consider the strength of the plaintiff's claim as against the defendants on the one hand and the sources on the other, to the extent that it is possible to do so on the material before the Court.

136 In saying so, I emphasise that it is neither necessary nor appropriate in the present proceeding to determine whether the defences will succeed. As already indicated, the task is to consider any defences that are open to be pleaded and that might well succeed.

137 Before turning to the detail of those matters, however, I should address Mr Blackburn's second primary submission as to why an order for preliminary discovery is not necessary to provide the plaintiff with an effective remedy. At the hearing of the present application, the plaintiff launched a substantial attack on the conduct of the second defendant, Mr Baker in publishing the contents of the handwritten material. It was put to him, in effect, that he must have known that those documents were not genuine papers of the plaintiff.

138 In their written submissions provided at the conclusion of the hearing, the defendants submitted that, having sought to demonstrate that the journalists misled the readers of The Age by publishing the contents of documents they knew to be false, the plaintiff cannot at the same time contend that she will not have an effective remedy against the journalists and The Age . The defendants went so far as to submit that the inconsistency in those contentions raised a question as to whether there is a genuine purpose in bringing the present application.

139 With great respect to counsel for the defendants, I think that submission overlooks some of the subtleties of the issues the plaintiff has to grapple with at this stage of her pursuit of a remedy. Plainly it is believed by the plaintiff or her legal representatives that the conduct of the defendants in publishing the matters complained of was not reasonable and, accordingly, that her claim against them will succeed. Such confidence does not remove the risk that the newspaper will in due course conduct a successful qualified privilege defence. It simply means that is a risk the plaintiff is prepared to take, as presently advised.

140 It is clear from the decision of the High Court in Cojuangco that the determination as to whether there is an effective remedy against the newspaper and the journalist is an objective one. The question whether the defence might well succeed is not foreclosed by the plaintiff's belief that it will not. The task is for the judge to assess the defence prospectively without knowing what the final evidence will be or indeed what will be revealed by further interlocutory steps such as discovery and interrogatories. The plaintiff's belief that the newspaper has no defence is scarcely relevant to that task, let alone determinative.

141 It may also be noted that the defendants adduced a great deal of evidence as to the conduct of the journalists who wrote the two articles. That evidence was admitted as being relevant to the issue whether, in publishing the two articles, the defendants exercised their power as publishers in the mass media with "due responsibility": see Cojuangco at 355.2. Incidentally, the testing of that issue shed light on the strength of the qualified privilege defences. However, I do not think it would be fair to treat the plaintiff as effectively bound in respect of one issue by the stance she took in respect of the other.

Qualified privilege defences open to the defendants

142 As already noted, the question is not whether the qualified privilege defences will succeed. It is whether, on the material before me, the defences are open to be pleaded and appear to be such as might well succeed: Cojuangco at 357.9. Most of the evidence on that issue was directed to the conduct of the second defendant, Mr Baker. There is little before me on the strength of which I can consider the position of the other two journalists under whose by-line the articles were published (Mr Philip Dorling and Mr Nick McKenzie) save to say that it seems likely that the three journalists shared among themselves the information on the strength of which the articles were prepared.

143 In his affidavit, Mr Baker set out in great detail the steps he took in the preparation of the two articles. On the strength of that material considered in isolation, it must be concluded that defences of qualified privilege might well succeed.

144 It is necessary, however, to give consideration to two issues raised by Mr McClintock in cross-examination as to the reasonableness of Mr Baker's conduct in publishing the articles. First, Mr Baker acknowledged that the defendants changed the wording of translations obtained by The Age of the two letters received from the sources and attributed to the plaintiff in the articles.

145 The first article (exhibit B) was published on the front page of The Age on 3 February 2010. Prominent in the presentation of the article was the following quote attributed to the plaintiff:

Joel Fitzgibbon has become a Federal (MP). If the Labor Party becomes the dominant party, he will become a cabinet member ... The money we pay him is worthwhile.

146 Those words were alleged to have been written by the plaintiff in a letter to a Bank of China executive. The letter was in the Chinese language except for the name Joel Fitzgibbon and a signature attributed to the plaintiff, both of which were in English. Accordingly, the defendants obtained a translation of the letter.

147 The translation said "Joel Fitzgibbon has become a Federal Minister " (my emphasis). Although the date of the letter was illegible, the terms of the letter and the context in which it was received by Mr Baker evidently suggested to him that the description of Mr Fitzgibbon as a Federal Minister was factually incorrect at the time the letter was written. In the article on the front page of The Age , the quote was reproduced so as to read "Joel Fitzgibbon has become a Federal (MP)".

148 The use of brackets in such circumstances ordinarily denotes the substitution, for ease of reference, of words that are synonymous with or otherwise unequivocally of identical reference to words omitted from the quote. That was not the case here. A member of parliament is not the same thing as a Minister.

149 The quote was repeated, with the same change, in the second article complained of by the plaintiff (exhibit C). The same occurred in respect of a second letter obtained by the journalists from the sources, which was also quoted in the second article. The second letter (exhibit D) was translated (at RJB38 exhibited to Mr Baker's affidavit) as follows:

Federal Minister Joel Fitzgibbon is also very concerned about the legal case I am involved in at the moment and has provided me with great help.

150 In the second article (exhibit C), the quote was changed to read "Federal (MP) Joel Fitzgibbon". That letter was dated 22 June 1998. It was acknowledged by the defendants at the hearing that Mr Joel Fitzgibbon was not even a shadow minister prior to 19 October 1998.

151 It was Mr Baker's evidence that, in making those changes, he and his colleagues were "putting it right in the timeframe that it was". He stated that they believed in each instance that there was (in the original Chinese text) a genuine mistake or "an effort to inflate that position".

152 The effect of Mr Baker's evidence was that he knew that the description of Mr Joel Fitzgibbon in the letters was wrong but that he put it down to language difficulties or a case of the author of the letters deliberately overstating Mr Fitzgibbon's title so as to impress the recipients. Nonetheless, the undoubted effect of the change made to the true wording of the translation was to conceal an obvious misdescription, with the result that readers were not able to assess its significance for themselves.

153 The second issue raised in Mr McClintock's cross-examination was the contention that, at the time the articles were published, Mr Baker knew the documents were forged. The evidence before me did not persuade me that that is the case. It is neither necessary nor appropriate to say anything further on that issue in the present proceeding.

154 I have concluded that it would be open to the defendants to plead the statutory defence of qualified privilege under s 30 of the Defamation Act and the defence at common law in respect of political discussion recognised in Lange . Further, I am satisfied that those defences might well succeed.

155 It is clear that the plaintiff will challenge the reasonableness of the conduct of the defendants in publishing the articles. In that context, the decision to omit the incorrect description of Mr Fitzgibbon as a "Federal Minister", whilst informing readers in at least one of the articles complained of that the documents had been translated by "a nationally accredited translating firm", will potentially be problematic. However, the reasonableness of the conduct of the defendants must be considered as a whole. It is clear from Mr Baker's evidence that he will seek to establish that he was thoroughly convinced as to the truth of the allegations he published following a careful investigation.

156 On balance, I am satisfied that defences of qualified privilege might well succeed and, accordingly, that the plaintiff may not have an effective remedy against the defendants.

157 The second limb of the defendants' argument is that the plaintiff must go further and establish that defences of qualified privilege would not be equally open to the sources. I think that is a difficult argument. As a matter of logic, an applicant for preliminary discovery who does not know the identity of a proposed defendant will rarely be in a position of being able positively to prove that such a person will not have a defence that turns in part on his or her state of mind.

158 In my view it is enough to say, as the plaintiff has contended, that (assuming the documents are forgeries or have otherwise been falsely attributed to the plaintiff) the material before the Court reveals that the newspaper and the journalists deny any knowledge of the fraud whereas there is no such material in the case of the sources. In the absence of any material one way or the other as to the knowledge of the sources on that issue, I am unable to form a conclusion that qualified privilege defences are open to be pleaded by the sources and might well succeed.

159 A further consideration relied upon by the plaintiff as to the effective remedy consideration is the fact that she would seek, in vindication of her reputation, to "nail the lie". The plaintiff relied in that context upon the statement of Mahoney JA in Cojuangco in the Court of Appeal ( John Fairfax & Sons Ltd v Cojuangco (1987) 8 NSWLR 145 at 151D):

The fact that there is another remedy will not, I think, be conclusive against a plaintiff seeking the exercise of this power. He may desire, and legitimately desire, to sue one person rather than another notwithstanding that he will recover adequate monetary compensation from that other. Particularly in relation to defamation, the function of litigation as a means of vindication of a plaintiff's reputation and as a means of mitigating the sting of the wrong done to him by judgments against his chosen defendant should properly be taken in to account: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150; Broome v Cassell & Co Ltd [1972] AC 1027 at 1071.

160 If the plaintiff is unable to identify the sources, she will in effect be left without the opportunity to pursue a remedy that would see the issue of the alleged forgery fully litigated and determined. That is a significant consideration, in my view.

161 For those reasons, I am satisfied that the plaintiff may not have an effective remedy against the defendants. That is a factor which points towards exercising my discretion in favour of the plaintiff.

Considerations underlying the newspaper rule

162 As already noted, although the newspaper rule does not apply directly to applications for preliminary discovery, the decision of the High Court in Cojuangco holds that the policy considerations underlying the existence of the rule must be taken into account in the exercise of the Court's discretion to grant preliminary discovery. Thus in considering whether the applicant has satisfied the requirement to show that the order sought is necessary in the interests of justice, the Court must place a high value on the public interest in the free flow of information. The discussion above in respect of the freedom of discussion on government and political matters protected by the Constitution reveals that there is a particularly strong public interest in the free flow of information on such matters.

163 The issue was formulated by the defendants in their "agreed statement of issues" (it is not clear to me whether their version of that document was in fact agreed) in the following terms:

Are the defendants entitled to protection from disclosure of the information and/or material sought by the summons pursuant to the newspaper rule?

164 I think it is probably wrong to regard the newspaper rule as conferring any right or entitlement to protection on journalists and newspapers. Rather, the rule directs attention to the public interest in the free flow of information as an important discretionary factor militating against preliminary discovery where the person concerned is a journalist's source who has sought to have his or her identity kept confidential by the journalist as the price of providing the information in question.

165 The relevant factors identified in Cojuangco at 353 to 354 were conveniently collected in the defendants' written submissions, as follows:

(a) the importance of freedom of the press;

(b) the important part played by newspapers in promoting the free flow of information to the public;

(c) the public interest and the benefit for society in having discussion and evaluation of affairs that is informed;

(d) potential sources of information that might usefully be aired in public should not be discouraged by the distracting thought that their identity could quickly be disposed in proceedings taken against a newspaper without there being a trial;

(e) the desirability of discouraging plaintiffs at the interlocutory stage from delving round for other targets;

(f) the public has a right to access of information which is of public concern and of which the public ought to know - the newspapers are in effect the agents of the public to collect that information and to tell the public of it;

(g) the role of the media in collection and disseminating information to the public;

(h) the free flow of information is a vital ingredient in the investigative journalism which is an important feature of our society; and

(i) information is more readily supplied to journalists when they undertake to preserve confidentiality in relation to their sources of information.

166 The defendants sought to adduce evidence from the well known journalist, Mr Chris Masters, directed to establishing the important role of confidentiality of sources in investigative journalism. I rejected that evidence, principally in the interests of sparing court time, since I regarded the propositions sought to be proved by calling Mr Masters as being so obvious that no further time on them was warranted: Liu v The Age Company [2010] NSWSC 1176 at [50] to [54].

167 It must be acknowledged, however, that there are competing considerations. Indeed, for the reasons explained above in the context of the constitutional issues raised in this case, in my view an absolute and immutable protection of confidentiality wherever demanded by a journalist's source (in cases of political discussion) would itself be inimical to the maintenance of the system of government required by the Constitution. It would expose politicians and others involved in government and politics to the risk of false and malicious attack from their detractors without recourse or remedy. To allow such sources to shield themselves under the respectable cloak of investigative journalism would be contrary to the high ideals of a free press.

168 In my assessment, the present case sits poised uncomfortably on the fault-line of strong, competing public interests. The position is complicated by the fact that, to a significant extent, the respective positions of the plaintiff and the defendants rest on conflicting factual contentions which cannot satisfactorily be resolved in the present proceedings.

169 The defendants' case is that, following lengthy and careful negotiation, they obtained documents which reveal the making of corrupt payments by the plaintiff to a Federal Member of Parliament. They contend that the documents were obtained from sources who entertain real and substantial fear of reprisal in the event that their identities are revealed, contrary to undertakings given to them by the defendants. Accepting those contentions without qualification, there would be a strong case for refusing the discretionary relief sought by the plaintiff.

170 Conversely, the plaintiff's case is that a person or persons conducting a vendetta against her have provided documents to journalists which have been deliberately forged or falsely attributed to her. Accepting those contentions without qualification, to refuse the relief sought would perpetuate the fraud. That would plainly be a strong reason for exercising the Court's discretion in favour of the plaintiff.

The forgery allegations

171 In those circumstances, a substantial portion of the hearing was consumed by the forgery allegations. The parties acknowledged, however, that it is not my task in the present proceeding to determine those issues on a final basis. The defendants submitted that I should determine whether the documents are likely to be forgeries, as alleged by the plaintiff. It was submitted on behalf of the plaintiff that it would be enough (to overcome the powerful considerations raised by the newspaper rule) to show that the documents may well be forged or otherwise falsely attributed to her.

172 The plaintiff gave evidence at the hearing as to the handwritten documents. It is necessary to assess that evidence by reference to what was said about those documents in the newspaper articles.

173 The article on the front page of The Age was illustrated with a large image combining a photograph of Joel Fitzgibbon, a photograph of the plaintiff and the extract from a letter to a Bank of China executive discussed above.

174 The article opened with the allegation that the plaintiff's private records "show Ms Liu recorded her 1997-98 payment of 850,000 Chinese yuan - approximately $150,000 at the then current values - to Joel Fitzgibbon under the heading 'money paid including expenses and gifts'".

175 The article said:

The 135 pages of personal and business records obtained by The Age after a 10-month investigation include a list prepared by Ms Liu recording "money paid" for unstated purposes to 22 individuals, including Joel Fitsgibbon, variously connected with her property interests in Sydney and Qingdao.

176 The list referred to in that passage of the article (exhibit J) is handwritten and is in the Chinese language. Before the hearing, the plaintiff had access only to a translation of the list (exhibit RJB-35 to Mr Baker's affidavit). She swore an affidavit in which she denied writing any such list and denied making the payments allegedly recorded in the list. The plaintiff was subsequently granted access to the handwritten list (see Liu v The Age Company Ltd [2011] NSWSC 53 at [21]). After seeing that document, she gave evidence (through an interpreter) that it was not in her handwriting.

177 The letter quoted in the article became exhibit D in the proceedings (the translation was exhibit RJB-38 to Mr Baker's affidavit). The main body of the letter is typed in Chinese character. The letter bears a signature in the English language attributed to Ms Liu and a handwritten note in Chinese character.

178 The plaintiff gave evidence that she did not send a letter in that form to anyone at any time (T152). She gave evidence (at T152 to 156) as to a series of features of the composition of the letter indicating that it was not hers, including the form of address, the way in which the letter was set out and the fact that she would not have written Mr Fitzgibbon's name, or signed her own name, in English as they appear in exhibit D.

179 The plaintiff also said that the handwritten note was not her handwriting. She did not say that the signature was not her signature, and it was not contended that the signature itself was forged. However, a submission was put that the document could have been prepared by cutting and pasting a sample of the plaintiff's genuine signature onto the letter. A handwriting expert called by the defendants gave evidence that the signature was likely to be that of the plaintiff but did not rule out the possibility that it had been placed there in the manner contended for on behalf of the plaintiff. Given that the newspaper obtained only an electronic copy of the letter, and was not in a position to produce the original letter, that possibility cannot be excluded.

180 The plaintiff's evidence as to the second letter (exhibit G and RJB-21) was to like effect (at T157 to 160). Interestingly, the signature attributed to the plaintiff on that document appears slightly cut off or distorted at the bottom of the signature. The defendants' handwriting expert had not seen exhibit G before he gave evidence, and would not be drawn on that issue (see T247 to 250). Whilst his caution in declining to express an expert opinion impromptu in the witness box is understandable, the distortion is plain to the naked eye. The cause for its appearing that way is, of course, not established but it does provide some slim independent support for the plaintiff's contentions.

181 The plaintiff was cross-examined as to the credibility of her denial that she had made payments to the persons listed in exhibit J. The defendants submitted, on the strength of that cross-examination, that she should not be accepted as a witness of truth. That submission rested heavily on the answers given by the plaintiff as to whether she knew one of the people on the list. The plaintiff said that she did not know that person in 1992. She later said, when asked as to his position in 2000 and 2001, "I did not know him. I do not know him". She later agreed that she had met him in 2001.

182 The defendants' submissions have not persuaded me that I should treat the plaintiff as an unreliable witness on account of the answers given on that issue. A close consideration of the passages of the transcript relied upon by the defendants confirms my recollection of a confusing exchange between the witness and counsel. The submissions as to her alleged unreliability focus heavily on the fact that the answer quoted above was expressed in the present tense. However, due regard must be had for the fact that the plaintiff's evidence was given through an interpreter. It is not uncommon for confusion to arise as to the proper tense of an answer interpreted from another language.

183 The cross-examiner's task was further complicated by the fact that the witness had before her both the Chinese document (exhibit J) and a translation of that document which, for reasons that are not clear to me, lists the names and alleged payments in a different order from the order in which they appear in exhibit J. When asked to explain her allegedly contradictory evidence, the plaintiff referred to the confusion between the Chinese list and the English list (T207.17). The defendants derided that response, submitting that the plaintiff was looking at the English language version of the list which had been numbered by her own counsel and put before her (T198.30). However, it is clear that the plaintiff had both versions before her during the relevant part of the cross-examination (see T194.27). It is difficult to know what version she was considering at various points (eg T194.7-194.42; T198.6-199.47).

184 Having regard to all of those difficulties, I am not persuaded that the plaintiff was dishonest, or was prevaricating, as to whether or when she knew the person in question.

185 There is a further issue that must be considered in respect of the forgery allegations. As noted above, the email correspondence between Mr Baker and the contact reveals that, shortly before publication of the newspaper articles, the contact informed Mr Baker that "Helen's handwritten papers" should not have been included among the documents sent to the defendants. In a separate email, he requested the newspaper not to publish "Helen's handwritten", evidently expressing fear as to the consequences for at least one of the sources if that were to occur.

186 It is difficult to know what to make of that correspondence. The defendants submitted that the expression of such fears points strongly to the conclusion that the handwritten documents are genuine. They pointed to the unlikelihood that the sources would have asked The Age not to use the documents if they were forgeries prepared for the purpose of duping The Age. There is some force in that submission. However, the sudden change in attitude revealed in the correspondence between the contact and the defendants suggests other possibilities. After months of offering information for reward, the urgent request not to publish "Helen's handwritten" might equally reveal the recognition by the sources, after discussion among themselves, of a risk of being implicated in fraud. It is impossible to know, from the emails alone, where the truth lies.

187 One difficulty in assessing the force of the defendants' submission arises from the fact that the relevant email exchanges were before me in redacted form. I have given close consideration to the emails in question (exhibits N and 2). I am left unable to draw any firm conclusion on that question.

188 My conclusion as to the forgery allegations is that the handwritten documents may well have been falsely attributed to the plaintiff. I am firmer in that conclusion in respect of the handwritten list, which does not purport on its face to be the plaintiff's document. The defendants' reliance on it as such derives from its inclusion in the bundle provided to them as being the plaintiff's personal papers. Whether or not it was deliberately forged as a false document, it could well have been falsely or wrongly attributed to the plaintiff.

189 As to the letters, the plaintiff's case rests unequivocally on a more serious allegation. Each letter bears a signature attributed to the plaintiff. In the absence of any suggestion that the signatures are not hers, the plaintiff is left to a case that someone deliberately appended her signature to a document that was not hers. As accepted by the defendants, however, it is not necessary to decide whether that occurred. It is enough to say that the plaintiff's evidence, the appearance of the second letter and the absence of any original documents point to the conclusion that it may well have occurred. My consideration of the email exchanges between Mr Baker and the sources (exhibit N) has neither reinforced nor derogated from that conclusion.

Did the defendants undertake not to disclose the identity of the sources?

190 A further consideration relevant to the exercise of my discretion is whether the defendants undertook not to disclose the identity of the sources.

191 As already noted, the 135 pages alleged to be the plaintiff's personal papers were provided to Mr Baker as attachments to seven emails (evidently owing to the fact that the amount of material was too great to be sent as a single attachment). Those emails were sent directly to Mr Baker by one of the sources, not by the contact. Otherwise, all of Mr Baker's correspondence was with the contact.

192 The plaintiff noted that there was no request for confidentiality in any of those seven emails. However, the exchange of correspondence does reveal, in my view, that the sources did not wish to have their identity revealed.

193 Separately, Mr McClintock submitted that the documents were not handed over in circumstances importing an obligation of confidentiality or suggesting that the identity of the sources was confidential. It may be acknowledged in that context that the primary focus of much of the early correspondence was the question of payment. The contact referred to the sources having been in contact with other media organisations attempting to sell the same material. That is perhaps a factor militating against the conclusion that confidentiality as to their own identities was a concern at that stage.

194 Further, the position of the sources was not unequivocal on that issue. In particular, it is by no means clear that the sources were given to understand that it would be possible to protect their identity if the information supplied by them was used in an article published in the newspaper. In one email, the contact stated that if any parties such as Helen Liu wanted to buy the documents, "it is need our proving" (perhaps intended to read "approval"). That suggests that the sources' primary concern was to receive payment, not to conceal their identities.

195 Other parts of the correspondence, however, suggest an understanding that the identities of the sources would not be disclosed to the public. The defendants made some express representations to that effect. On balance, I am persuaded that the correspondence proceeded largely on that premise.

"Helen's handwritten papers"

196 There is, however, another aspect of the communications between the defendants and the sources which must be considered. As already explained, the defendants were informed that the 135 pages allegedly comprising the plaintiff's personal papers should not have included "Helen's handwritten papers". The correspondence suggests that one of the sources sent the papers voluntarily but was subsequently informed by the other source (not the contact) that the handwritten papers should not have been included in what was sent. The contact thereupon withdrew any request for money and said "just not mention Helen's handwritten please" (email dated 31 January 2010, page 53 of Exhibit N).

197 The following day, the contact sought Mr Baker's word that the newspaper "won't publish Helen's handwritten please" and similarly conveyed a request on behalf of the source that the defendants "not publish about Helen's handwritten please". As noted above, there was some debate at the hearing as to the meaning of that and subsequent requests. In my view, it is clear that, from 31 January 2010, the sources were requesting the defendants not to use the handwritten papers in any publication.

198 The night before the articles were published, Mr Baker responded to those requests by stating that, after discussing matter with the editors, it had been decided that the information was "of the highest importance to Australians in regards to honesty and integrity in our political system". He stated that the editors had accordingly decided to publish a story, based on the documents, in the near future. Mr Baker's email said:

We hold to our commitment to provide a research fee of a reasonable nature. We've not provided copies to any third parties and have not referred to any documents being hand-written. I understand your friend will be concerned but the fact is the public interest in the dishonesty being exposed is paramount. The identities of you and your friend have not been disclosed to anyone.

199 The contact responded the next day (evidently after seeing the article) recording the anger of one of the sources at the contents of the article, which he said "will exposure Helen's handwritten". He expressed a concern that the publication of the article would force the newspaper to release those papers to a third party.

200 I am satisfied that, as submitted on behalf of the plaintiff, the correspondence reveals that Mr Baker disobeyed a specific request made to him by the contact on behalf of the sources. It was clearly indicated, so far as at least one of the sources was concerned, that the handwritten papers had been included inadvertently among the documents sent. A request was made on that basis not to publish those papers. Contrary to that request, The Age published details of the handwritten papers on its front page.

201 The newspaper's decision to use the handwritten documents in the face of requests from the contact not to do so had the tendency, in my view, to undermine the very protection sought to be achieved by the practice of not requiring journalists to disclose their sources unless such disclosure is necessary in the interests of justice.

202 The nature of the protection sought to be achieved by the newspaper rule was explained by Dixon J in McGuinness at 104 (approved in Cojuangco at 355.5):

The foundation of the rule is the special position of those publishing and conducting newspapers, who accept responsibility for and are liable in respect of the matter contained in their journals, and the desirability of protecting those who contribute to their columns from the consequences of unnecessary disclosure of their identity...

203 However, the protection of sources from disclosure of their identity is not a right or an end in itself. The rationale for the protection lies in the public interest in cultivating trust between sources and journalists as a boon to free speech and, in particular, free political discussion.

204 The defendants unilaterally determined in the present case that the interests of the sources must yield to what the defendants claimed was a paramount public interest. It was that decision which exposed the sources to the risk of disclosure of their identity. Having invoked the relativity of competing interests as the basis for that decision, the defendants can hardly maintain that interests competing with the public interest in protecting confidentiality of journalists' sources must be set to one side in the determination of the present application. In my assessment, the force of the considerations underlying the newspaper rule is substantially lessened in the present circumstances.

205 It is important, of course, not to overlook the interests of the sources. It is convenient to consider that issue in the context of the submissions put by the parties as to the application of s 126B of the Evidence Act , discussed below.

Section 126B of the Evidence Act

206 Section 126B of the Evidence Act provides that the court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose:

(a) a protected confidence, or

(b) the contents of a document recording a protected confidence, or

(c) protected identity information.

207 Section 131A of the Act extends the application of that provision to the present proceedings.

208 The plaintiff acknowledged that the application of section 126B will have to be considered in the event that the Court is minded to grant the relief sought in the present proceedings. However, the plaintiff submitted, in effect, that the time for consideration as to whether such a direction should be given has not yet arisen. As noted on behalf of the defendants, if the Court did not make any direction at this stage but was satisfied that one must be given at any examination or in relation to any documents produced pursuant to an order under rule 5.2, the practical result would be the same.

209 Section 126B(3) provides that the court must give a direction that the evidence not be adduced if it is satisfied that:

(a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced; and

(b) the nature and extent of the harm outweighs the desirability of the evidence being given.

210 The defendants initially submitted that those requirements were satisfied on the strength of the affidavit evidence of their solicitor, Mr Bartlett. Mr Bartlett's evidence addressed, at a broad level, publicly available information concerning Chinese government intelligence services and China's military capabilities. The cogency and relevance of that evidence for present purposes was substantially overtaken by events during the course of the hearing. In my assessment, the question whether any direction should be made under s 126B should primarily be informed by the contents of the email exchanges now in evidence.

211 Unfortunately, as already indicated, the extent of redaction of those emails substantially reduces their intelligibility. Further, it is difficult to form any conclusion as to the likelihood that harm might be caused to the sources on the strength of the emails alone, without knowing anything as to the identity or circumstances of the people behind them. For those reasons, I am not presently persuaded that any direction should be made under s 126B. As acknowledged by the plaintiff, that conclusion does not foreclose further consideration of that issue upon the making of orders under rule 5.2.

212 Separately, the defendants submitted that the interests of the sources should be taken into account in determining whether to exercise the discretion to grant the relief sought by the plaintiff. The evidence as to that issue comes primarily from the contents of the email correspondence (Exhibits N and 2). That correspondence reveals that the sources initially contacted the defendants with a view to selling information. They sought payment in the order of $120,000. The defendants responded by offering up to $10,000. A suggestion that one of the sources might lose his employment upon providing the information was plainly tied to attempts to negotiate a higher payment in that context.

213 As submitted on behalf of the plaintiff, the early correspondence did not include any explicit request that the defendants not disclose the identity of the sources. Rather, the focus of the correspondence was upon obtaining reassurances that the defendants would not sell the information to any third party without consulting the sources.

214 A consideration of the emails in chronological order reveals that it was in fact the defendants who first volunteered that they would not disclose the identity of the sources.

215 After considering the contents of the relevant correspondence before me (Exhibits N and 2), I am not persuaded that there is any tangible risk of adverse consequences to the sources in the event that their identity is revealed beyond the risk of their being sued for defamation and the consequential impact upon their relationship (if any) with the plaintiff.

Conclusion

216 In all the circumstances, I am satisfied that it is necessary in the interests of justice to exercise my discretion in favour of the plaintiff. Accordingly, I order that the defendants give discovery to the plaintiff of all documents that are or have been in their possession which relate to the identity or whereabouts of the sources.

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Decision last updated: 02 February 2012