The Age Company Ltd & Ors v Liu

(2013) 82 NSWLR 268; [2013] NSWCA 26

NSW Court of Appeal

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Interrogate

Catchwords

1. Constitutional Law (Cth)
2. › Implied freedom of communication on government and political matters
3. › Validity of State subordinate legislation
4. › Power to order disclosure of confidential journalistic sources
5. › Whether UCPR r 5.2 effectively burdens freedom of communication
6. › Whether rule reasonably appropriate and adapted to legitimate end in manner compatible with constitutionally prescribed system of government
7. › Lange test applied
8. › Constitution, ss 7, 24, 64, 128
1. Practice and Procedure
2. › Preliminary discovery
3. › Discovery to ascertain prospective defendant's identity
4. › Confidential journalistic sources
5. › Whether reasonable inquiries made
6. › Whether applicant unable to sufficiently ascertain identity despite inquiries
7. › Relevance of newspaper rule to exercise of discretion
8. › Uniform Civil Procedure Rules 2005 (NSW), r 5.2
1. Evidence
2. › Admissions
3. › Admission by agent
4. › Whether person had authority to make statements on behalf of party
5. › Solicitor's implied authority
6. › Evidence Act 1995 (NSW), s 87(1)(a)
1. Appeal
2. › Leave to appeal
3. › Interlocutory decisions
4. › Principles governing grant of leave
5. › Whether error of principle or injustice demonstrated

Quick Take

UCPR r 5.2 is constitutionally valid and may be used to compel disclosure of confidential journalistic sources even where the sources provided information on government or political matters. The rule satisfies the second limb of the Lange test because it facilitates the legitimate end of enabling defamation proceedings against unidentified persons, the source has the defence of qualified privilege available, and the rule's threshold preconditions and judicial discretion ensure compatibility with the implied freedom. Applicants for preliminary discovery must disclose the substance of inquiries made and their results to enable the court to make an objective assessment of reasonableness.