FEDERAL COURT OF AUSTRALIA

Russell v Australian Broadcasting Corporation (No 2) [2023] FCA 808

ORDERS

THE COURT ORDERS THAT:

1.    Order 2 of the Orders dated 11 July 2023 be vacated.

2.    The second further amended defence to the amended statement of claim filed on 14 July 2023 be removed from the Court file.

3.    The balance of the respondents’ interlocutory application dated 12 July 2023 be dismissed.

4.    The costs of and incidental to the case management hearings on 11 and 12 July 2023, and the interlocutory hearing on 14 July 2023, be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

1    This defamation proceeding is to proceed to a final hearing in a fortnight. The respondents, namely the Australian Broadcasting Corporation (ABC) and two of its journalists, Joshua Robertson and Mark Willacy, now move on an interlocutory application by which they seek to have two orders I made on 11 July 2023 vacated (Relevant Orders).

2    In order to understand the context in which this unusual application has arisen, it is necessary to sketch some background.

3    Mr Heston Russell, a former Major and Commando Officer within the Special Operations Command of the Australian Defence Force, sues in relation to the publication of two articles, a television broadcast and a radio broadcast in November 2021.

4    Following disputes as to discovery, a case management hearing was requested at short notice on 11 July 2023. After hearing argument, I made orders, inter alia: (1) requiring the ABC to provide to Mr Russell’s solicitors by way of discovery copies of documents that have been redacted to obscure the identity of one of the ABC’s sources, an individual known by the pseudonym “Josh”; and (2) requiring junior counsel on both sides to confer in person with a view to resolving disputes concerning other redactions including those made to documents discovered in Part 1 of the ABC’s List of Documents for what was described as “relevance” (that is, redactions of documents over which no claims for privilege were made).

5    The reason why the Relevant Orders were made is critical. Mr Russell did not know “Josh’s” name two weeks before trial and senior counsel for Mr Russell indicated: “I want to speak to other witnesses in the US. I want to make the enquiries that Mr Willacy said he made wished to make” and to obtain “instructions from my client as to whether he ever worked with this person” (T11.14–15 11.7.23).

6    Further, and importantly, the ABC had stated in a letter of 11 July 2023 tendered at the case management hearing on the same date that it was:

… prepared to agree to an appropriate confidentiality regime with respect to “Josh’s” name and material that might permit his name to be uncovered as follows:

(a)    Josh’s name may only be disclosed to:

(i)    Judges of the Court and all necessary court staff, including transcription providers; and

(ii)    Legal representatives of the Applicant on the undertaking that his name will not be revealed to any other person (including the Applicant); and

(b)    References to “Josh” in the First Respondent’s discovered documents and in any evidence tendered in these proceedings to remain redacted during the hearing of this matter unless the Court orders otherwise”.

7    The difficulty I perceived with the course proposed by the ABC was that it would not allow those acting for Mr Russell to take the steps they wished to take, and if “Josh’s” name was only revealed at trial in two weeks in a way they could communicate to others, this may cause the part-heard trial to be adjourned or miscarry. This is in circumstances where, first, the then unknown identity would likely be required to be revealed in evidence at the trial, at least to respond to the statutory defence of public interest in s 29A of the Defamation Act 2005 (NSW) (which requires consideration as to whether the publisher reasonably believed that the publication was in the public interest, taking into account all of the circumstances of the case). Secondly, release of the information at trial would not be subject to the constraints sought to be put on the disclosure of information by the ABC pre-trial. Thirdly, if the belated revelation of this material caused the trial to be delayed or adjourned part-heard, my current Court commitments mean I could not accommodate further hearing dates in the foreseeable future this year.

8    I was required to fashion a solution consistent with the case management principles enshrined in Pt VB of the Federal Court of Australia Act 1976 (Cth) (FCA Act), which require the Court to ensure litigation is conducted in accordance with the overarching purpose, being the just resolution of disputes, according to law and as quickly, inexpensively and efficiently as possible. It was to facilitate this end that orders were subsequently entered in the following terms (with the Relevant Orders bolded):

1.    Order 5(a) of the Orders dated 16 May 2023 be varied and the parties file and serve any affidavits in reply by 4pm on 12 July 2023.

2.    By 4pm on 12 July 2023, the respondents provide to the applicant’s solicitors by way of discovery copies of documents that have been redacted to obscure the identity of “Josh” with any such redactions removed.

3.    By 4pm on 13 July 2023, the parties file and serve any amended supplementary lists of documents, and discover any documents not yet produced, pursuant to Order 3 of the Orders dated 16 May 2023.

4.    Pursuant to s 37P(2) of the Federal Court of Australia Act 1976 (Cth):

(a)    junior counsel for the applicant and junior counsel for the respondents meet in person on 12 July 2023 and confer as to the documents in respect of which the respondents have made redactions, with a view to resolving any disputes concerning such redactions or narrowing the issues in dispute;

(b)    junior counsel for the respondent bring copies of documents with the parts previously redacted; and

(c)    subject to such conferral, where there is no claim for legal professional privilege or source privilege, those documents be available for inspection to applicant on 12 July 2023.

…

10.    The matter be listed for case management hearing at 11:30am on 14 July 2023 in Sydney.

(Emphasis added).

9    While I was interstate hearing another matter the next day, the ABC sought to relist the matter to seek a stay. I held a case management hearing by video at 5:45pm, at which time counsel for the ABC told the Court that “as a result of your Honour’s orders made yesterday … the respondents have withdrawn their public interest defence”. The respondents also conceded that as a consequence of the abandonment of this defence, Mr Russell was entitled to judgment.

10    The case management hearing was followed by a press release issued by the ABC later that evening, in the following terms:

Heston Russell

A recent court ruling would have forced the ABC and our journalists to reveal the confidential name of a key source in the defamation matter being brought by former serviceman Heston Russell.

The ruling in the Federal Court resulted in the ABC having to choose between protecting the identity of its source by upholding a pre-publication commitment made to the source to not reveal their real name – versus continuing its defence of the defamation proceedings.

The ABC had no choice but to uphold its commitment and abandon its defence of proceedings.

The protection of sources is crucial for public interest journalism, especially when sources fear adverse effects from their real names being revealed. The ABC and other news organisations must take the strongest line possible in supporting and defending journalists and sources who have entered into such an agreement.

ABC Director News Justin Stevens said: “Commitments made and kept by journalists to sources are central to ensuring journalists retain the ongoing trust of people speaking truth to power, they are a key tenet of journalistic ethics and press freedom in this country.

“We wanted the opportunity to defend our journalism in court, however a greater principle is now at stake – our ethical responsibility to honour the promise protecting the name of our source.

“Mark Willacy and the ABC’s award-winning investigations team are experienced journalists with a strong track record of reporting on matters of public interest and the ABC supports them upholding their obligations to their sources.”

(Emphasis added).

11    At the time it was published, this press release struck me as a curious document. Even if the statutory defence of public interest was abandoned, given the way particulars of aggravated damages had been given, Mr Russell would inevitably press at trial for the revelation of the unknown name of the “confidential” source. If “Josh’s” name had to be given up anyway because of the way the claim for aggravated damages was to be advanced, what was the reason for abandoning the defence at this time?

12    It was also curious because, as noted above (at [6]), the ABC had already provided orders to the Court expressly noting they were prepared to agree to a confidentiality regime with respect to “Josh’s” name and permit his name to be uncovered to the Court and Mr Russell’s legal representatives.

13    In any event, it is unnecessary to explore these matters for present purposes.

14    But this morning things changed.

15    I was informed, for the first time, that Mr Russell’s lawyers have now uncovered “Josh’s” identity. A confidential affidavit has been filed (protected by an interim confidentiality order to be revisited at trial) establishing, to my satisfaction, “Josh’s” name. Understandably, Mr Owens SC, who appeared for the ABC, would neither confirm nor deny the accuracy of the information revealed.

16    This matters because Mr Russell’s lawyers no longer need the material identifying “Josh” to do the work they said they intend to do prior to the commencement of the trial. Order 2, premised on the necessity of allowing Mr Russell to conduct this pre-trial work is, as a consequence of this development this morning, no longer necessary.

17    This development of uncovering the details of the identity of “Josh” is not as surprising at it might appear at first glance. The ABC’s current position as to the confidentiality of the name of its source subsists notwithstanding it has voluntarily provided the following information about “Josh”.

18    First, the October Article (defined in my earlier reasons, Russell v Australian Broadcasting Corporation [2023] FCA 38 (at [8])), which remains on the internet, includes a picture of him. I remarked in my earlier judgment that despite taking on a pseudonym, “Josh”:

… strangely enough is pictured [in the October and November Articles], notwithstanding both the October and November Articles record he does not want to be identified because he “fears retribution”. If those responsible for publication of “Josh’s” photograph within the ABC thought there was substance in “Josh’s” fears of retribution, they must have assumed his potential assailants were a somewhat incurious and lazy lot.

19    Secondly, the ABC broadcast unredacted footage of an interview with “Josh” on the Media Watch programme, which has since been rebroadcast by other national news organisations.

20    Thirdly, the affidavit of Mark Willacy affirmed 3 July 2023 (filed in advance of the trial but admitted into evidence at the case management hearing with a limitation under s 136 of the Evidence Act 1995 (Cth) (EA) that it be received for the limited purpose of addressing the issues now arising) reveals a number of facts in relation to “Josh”. For example:

(1)    “Josh” was a US Marine who served in the unit “HMLA-469”;

(2)    “Josh” flew the aircraft styled V-22;

(3)    “Josh” was deployed from May to November 2012;

(4)    “Josh” is from Stockton, California; and

(5)    an online search allows persons to find a United States Defence media story on “Josh” and a short article containing photographs of “Josh”.

21    Fourthly, the evidence reveals that the ABC has already disclosed in discovery that:

(1)    “Josh” was in his freshman year of high school in 2001 when 9/11 occurred;

(2)    “Josh” studied electron microscopy after high school;

(3)    “Josh” joined the United States Marine Corps (USMC) in May 2009;

(4)    “Josh” was a corporal when he left the USMC;

(5)    “Josh” was deployed to Afghanistan in May 2012 and was stationed close to or in Camp Bastion in Helmand Province;

(6)    “Josh” was part of the military unit that responded to the 14 September 2012 attack at Camp Bastion, where Prince Harry, Duke of Sussex was stationed at the time;

(7)    “Josh” was “UH-IN” helicopter crewchief;

(8)    “Josh” had friends in HLMA-469 who were involved in a crash in Arizona and died in February 2012, a flight which he was scheduled to be on;

(9)    “Josh” has an ex-wife whom he married during his deployment in Afghanistan;

(10)    “Josh” left the USMC in October 2013;

(11)    “Josh” was awarded five air medals along with three silver stars on his combat wings for his time with the USMC;

(12)    “Josh” completed an Associate’s degree at college or university and opened up half a dozen small businesses after he left the USMC;

(13)    “Josh” married a member of HLMA-469 in July 2020, who provided ordinance in 2012 in Afghanistan;

(14)    “Josh” was laid off during the COVID-19 pandemic;

(15)    “Josh” was located in the Mountain Standard Time Zone on 2 October 2020;

(16)    “Josh’s” father and younger brother are roofing contractors;

(17)    there is a short article online about “Josh” containing photographs of him which corroborates many of the other details provided as to his identity;

(18)    there is a Tweet about “Josh’s” squadron that permitted Mr Willacy to identify him; and

(19)    there is a radio interview online that “Josh” gave to a United States military public affairs service.

22    Notwithstanding the ABC’s provision of this material (either voluntarily or as compelled by the Court on discovery), the ABC asserts that the so-called “Newspaper Rule” applies to protect “Josh’s” identity now and at the trial. The stated reason is that the ABC need not break the “promises” made to “Josh” as to the protection of his identity. Critically, they do not invoke the source privilege in s 126K of the EA, despite invoking this “shield law” for other confidential sources in the case. I infer, in the absence of any other explanation, this is because experienced counsel have reached the view that the pre-conditions to the operation of journalist privilege relating to an informant’s identity cannot be established in relation to “Josh”.

23    The newspaper rule is not a rule of evidence, but rather a rule of practice in defamation actions that the Court, in the exercise of its discretion on an interlocutory application, will generally not compel a media defendant to disclose its sources of information: McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 (at 104–105 per Dixon J). The protection against disclosure exists prior to the hearing of the action and generally does not exist at trial: West Australian Newspapers v Bond (at 180 [64] per Buss JA, with whom Owen and Wheeler JJA agreed); cf John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 (at 354–355 per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ).

24    The rule has its critics and its uncertainties. In A Code of the Law of Actionable Defamation (2nd ed, Butterworth & Co, 1923) (at 413), Spencer Bower described the rule as “an utterly illogical practice in favour of newspapers [which has] been allowed to crystalli[s]e into a positive rule.” Chief Justice Mason and Justices Wilson, Deane, Toohey and Gaudron noted in Fairfax v Cojuangco (at 352) that its sphere of operation is “shrouded in uncertainty, as might be expected of a principle erected on shifting foundations.”

25    The immunity, such as it is, has been described as one “carved out of the general field of relevance” (Cojuangco (at 352 per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ)); it “rests not on a principle of privilege but on the limitations of discovery”: McGuinness v Attorney-General (at 104–105 per Dixon J), citing Professor JH Wigmore, Treatise on Evidence (2nd ed, vol 5, sec. 2286, n. 7).

26    Whatever the uncertainties, it is obvious, however, that there are sound policy reasons for the common law rule which does not require a journalist to reveal a confidential source and break a promise made to that source, unless it is necessary to do so to do justice and secure a fair trial. Given those acting for Mr Russell now know the identity of the informant, no doubt there will be argument at trial as to whether it is necessary for any witness called by the ABC to answer a question in cross-examination as to the identity of “Josh”.

27    I do not here propose to speculate as to what might happen at trial, nor do I propose to express a view, one way or another, as to whether the newspaper rule will prevent any questions at trial. In circumstances where Mr Russell’s lawyers are satisfied they already know “Josh’s” identity, this might be seen as a matter it is not worth pursuing. Full consideration of the application of the rule may be left to the trial after full submissions, if it is necessary.

28    For present purposes, what matters is that I am no longer satisfied it is necessary for the ABC to be compelled to provide information as to the source in order to allow the trial to be conducted fairly from the perspective of Mr Russell.

29    It is then necessary to deal with the consequences said to flow from this development.

30    The ABC seeks that a further amended defence filed in the registry this morning be removed from the Court file and they continue to be allowed to defend the proceedings on the basis of the defence that was extant prior to that document being filed. That is, the resuscitation of the public interest defence. Mr Russell opposed this course but I have determined it is appropriate.

31    At the end of the day, as noted above, my role as a trial judge is to resolve this dispute justly and according to law. Provided there is no unfairness, each point which a party can properly and legitimately pursue should be able to be agitated at trial. This assists in the maintenance of confidence in the administration of justice by ensuring that cases are determined on the merits. It is no small thing to lock a respondent out of a defence it wishes to run and is not liable to summary disposal.

32    To describe what has happened as unusual would be an understatement but it is appropriate to vacate Order 2, which was made in different factual circumstances. The balance of the ABC’s interlocutory application should be dismissed because the other Relevant Order (Order 4) is already spent.

33    I will also make an order requiring the second further amended defence to the amended statement of claim filed on 14 July 2023 be removed from the Court file. Following the delivery of these reasons, I will separately make timetabling orders to set the parties back on track for the trial.

34    Finally, senior counsel for Mr Russell sought a special costs order for the costs expended in relation to the case management hearings on 11 and 12 July 2023, and the interlocutory hearing today. I do not propose to deal with these costs now. I will make an order that costs be reserved and address all issues as to costs at trial.

Associate:

Dated:    14 July 2023