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Australia – Journalists’ Shield Laws.
12 August, 2013

Legal News & Analysis – Asia Pacific – Australia – Dispute Resolution

 

Hancock Prospecting Pty limited v Hancock [2013] WASC 290


WHAT YOU NEED TO KNOW

 

  • Journalists' Shield Laws may apply to exclude production of material sought on subpoena where a subpoena is found to be oppressive and constitute an abuse of process having regard to the Journalists' Shield Laws, even in States such as Western Australia where there is no express provision in the legislation that they apply to subpoenas
  • Journalists' Shield Laws are capable of application in an arbitration.
  • Journalists' Shield Laws may have application in roceedings which commenced prior to the Journalists' Shield Laws coming into operation if the Court is satisfied that the final hearing has not commenced.
  • In weighing competing public interests the presumptive rights to the protection in the Journalists' Shield Laws should not be departed from lightly and only after a careful weighting up of the competing considerations.

 

Background


On 1 January 2012, Hancock Prospecting Pty Limited (HPPL), Mr John Langley Hancock and a number of other parties commenced an arbitration pursuant to the terms of a document entitled the Hope Downs Deed.


During 2012, Mr Stephen Pennells, a journalist employed by Western Australian Newspapers Limited (WAN), published a number of articles in the  est Australian newspaper in which he referred to a dispute between Ms Gina Rinehart and some of her children. The articles also referred more generally to the affairs of the members of the Rinehart family and to the business of HPPL and related companies. In some of those articles Mr Pennells made reference to conversations he had had with Mr Hancock and attributed a number of comments to Mr Hancock. In another publication reference was made to exclusive interviews provided to Mr Pennells by Mr Hancock.


HPPL issued subpoenas in the Supreme Court of Western Australia (the Court) for the production of documents to the arbitrator. The subpoenas were issued to Mr Pennells and to WAN. Mr Pennells and WAN applied to the Court to have the subpoenas set aside. Subsequently, HPPL pursued production of documents only in answer to the  subpoena directed to WAN (the Subpoena).

 

The Subpoena sought production by WAN of documents provided to Mr Pennells by Mr Hancock relating to a list of subjects or copies of recordings or notes of conversations between Mr Pennells and Mr Hancock which related to the same list of subjects.

 

The Western Australian Journalists' Shield Laws


On 21 November 2012, the Evidence and Public Interest Disclosure Legislation Amendment Act 2012 (WA) was enacted by way of amendments made to the Evidence Act 1906 (WA) (the Journalists' Shield Laws), by which the Journalists' Shield Laws came into force. 

 

This was after the commencement of the arbitration. 

 

The Western Australian Journalists' Shield Laws address the protection of the confidentiality of 'protected confidences' and 'protected identity information' in a variety of circumstances. They also deal with whether journalists can be compelled to give evidence of the identity of their informants. 

 

The legislation does not mandate the exclusion of evidence in a proceeding on the basis that the evidence would disclose a protected confidence or protected identity information. Rather, the Court has a discretion as to whether to give such a direction. The Court must, however, give the direction if two factors are satisfied:


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

b) The nature, extent and likelihood of the harm outweigh the desirability of the evidence being given.

 

The Court has a wide discretion in relation to the matters it may take into account for the purpose of determining whether to make a direction. However, in exercising that discretion it must have regard to 10 factors which are set out in the legislation. The Court is also required to give reasons for giving or refusing to give a direction, to ensure the transparency of the weighing process.


The Western Australian Journalists' Shield Laws do not contain a provision which indicates that they are to be applied directly in respect of an objection to the production of documents under subpoena. That is in contrast, for example, to the Evidence Act 1995 (NSW) and the Evidence Act 1995 (Cth), each of which contain a provision which expressly extends the protections afforded by the substantive protection provisions to pre-trail procedures including subpoenas.


WAN's application to set aside the Subpoena


WAN sought to set aside the Subpoena on three grounds. Relevantly, those grounds included that the Subpoena was oppressive or constituted an abuse of process as a result of an accumulation of factors. Those factors included, relevantly that it would be oppressive to require WAN to produce documents which it could not be compelled to produce in the arbitration, or in respect of which it would have highly persuasive arguments to resist production in the arbitration because of the operation of the Journalists' Shield Laws.


Initially the factors which WAN relied upon to support its contention that the Subpoena was oppressive and an abuse of process did not include any reference to the Journalists' Shield Laws. That was because the Journalists' Shield Laws did not come into operation until after WAN had made its application to set aside the Subpoena.


Once the Journalists' Shield Laws came into operation WAN relied upon them as providing an additional factor which supported its claim that the Subpoena was oppressive and constituted an abuse of process. However, WAN did not contend that the Journalists' Shield Laws applied directly to set aside the Subpoena. WAN relied upon the Journalists' Shield Laws as a further factor which, cumulatively with the other factors, supported the conclusion that the Subpoena was oppressive.


The Court's findings

 

The Court set aside the Subpoena on the basis that the Subpoena was oppressive and constituted an abuse of process, having regard to the Journalists' Shield Laws (except for any of the documents sought which contained information which had been attributed in the articles to a particular informant or informants).


The Court held that "if the Shield Laws do not apply in respect of the production of documents under a subpoena, the very protections the Shield Laws are designed to provide could be significantly undermined, if not rendered nugatory."


The other bases of WAN's application to set aside the Subpoena were unsuccessful.


The Court was not persuaded that the factors relied upon by WAN (other than the Journalists' Shield Laws), whether considered individually or collectively, supported the conclusion that the Subpoenas should be set aside. Those findings by the Court are not considered any further in this alert.


In deciding to set aside the Subpoena, the Court made the following findings:


a) The Court held that as long as the final hearing (the substantive hearing of the arbitration) had not commenced when the Journalists' Shield Laws came into operation, the Journalists' Shield Laws were capable of application to all 'proceedings', including the relevant arbitration. 

 

That was because the Journalists' Shield Laws apply in relation to information given by an informant whether given before or after the commencement of the provision.


While the provisions to do not apply in relation to a 'proceeding' the hearing of which began before the commencement of the provisions, the legislation draws a distinction between a 'proceeding' and 'the hearing' and the Court held that the meaning of the hearing is a reference to the final hearing.

 

Therefore, while the 'proceeding' in this case, the arbitration, had commenced before the legislation came into operation, there was no evidence before the Court to suggest that the substantive hearing of the arbitration had commenced. Therefore the Court held that the Journalists' Shield Laws were not excluded in the current context.

 

b) The Court also held that the evidence supported a conclusion that the documents sought by the  Subpoena contained identifying evidence as
defined in the Journalists' Shield Laws. That was because the Court found on the evidence before the Court that the documents sought satisfied the
three requirements required to constitute 'identifying evidence', as follows:


i. The documents contained information that would disclose the identity of a person or permit that person's identity to be ascertained;
ii. The information in the documents would identify the identity of an 'informant' (that is the identity of a person or persons which Mr Pennells had promised to keep confidential); and iii. The journalist promised the 'informant' that he would not disclose the informant's identity. 

 

c) The evidence supported a conclusion that neither Mr Pennells nor WAN could be compelled to give identifying evidence in the arbitration having regard to the Journalists' Shield Laws. 


This finding was based on evidence of Mr Pennells that the production of the documents sought would require him to reveal the identity of the person or persons who gave him the information in the documents and that would be a breach of his agreements with those persons not to disclose their identity without their prior approval. The Court held that it followed that the Journalists' Shield Laws gave rise to a presumption that neither Mr Pennells nor an officer of WAN could be compelled to give oral evidence of the identifying evidence contained in the documents sought.


Because the protection under the Journalists' Shield Laws is not absolute it was necessary for the Court to consider whether the factors in favour of making the direction were met. This required the Court to balance the competing public interest of communication of facts and opinions to the public by the news media and the ability of the news media to access sources of facts against the public interest in the administration of justice, the public interest of a fair trial and the public interest of the maintenance of national security.


In this case the Court found that the factors weighed in favour of making the direction and that it was highly unlikely that Mr Pennells or WAN would be compelled to give evidence of the identifying information in the documents sought.


d) In those circumstances the Court held that it would be oppressive and an abuse of process to require production under the subpoena to the extent the documents sought contained identifying evidence.

 

In coming to this conclusion, the Court noted that the result of this case does not mean that a subpoena for the production of documents held by a journalist or his or her employer could never be enforced. Whether a particular subpoena is enforceable will depend on the facts of the case.

 

 

For further information, please contact:

 

Robert Todd, Partner, Ashurst

robert.todd@ashurst.com

 

Susan Goodman, Ashurst

susan.goodman@ashurst.com

 

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