Marshall v Nationwide News

[2026] VSC 427

Supreme Court of Victoria

Built by Barristers,
For Australian Law.

1. Practice and procedure
2. › Preliminary discovery
3. › Discovery to identify a prospective defendant — r 32.03 — discretionary factors — strength of prospective cause of action
1. Evidence
2. › Privilege
3. › Journalist privilege — s 126K Evidence Act 2008 (Vic) — balancing exercise — displacement — pre-publication investigative journalism
1. Privacy
2. › Statutory tort
3. › Serious invasion of privacy — Privacy Act 1988 (Cth) sch 2 — misuse of private information — reasonable expectation of privacy — persons under anti-corruption investigation
1. Equity
2. › Breach of confidence
3. › Equitable duty of confidence — IBAC draft report — natural justice phase — confidential information

Under r 32.03 of the Victorian Rules (which unlike Federal Court r 7.22 contains no express precondition concerning a prospective cause of action), the strength of the prospective cause of action including the nature of relief sought and likelihood of obtaining it is a material factor in the exercise of the court's discretion, not merely a jurisdictional threshold — the NSW approach in The Age Company Ltd v Liu applies rather than the 'not onerous' Federal Court standard.
Section 166 of the IBAC Act does not prohibit disclosure of draft report information to a court: applying the Intralot principle, a court is not a 'person' within the meaning of the non-disclosure obligation, and filing court material containing such information without IBAC's prior authorisation is not an abuse of process.
In a s 126K(2) balancing exercise where no substantive proceeding is on foot and the court must itself articulate the relevant 'issues to be determined', the low prospect of the applicant obtaining any relief sought is a factor that moderates the public interest in disclosure, and the presumption against compellability means the status quo of non-disclosure is maintained where competing interests are relatively evenly balanced.