FEDERAL COURT OF AUSTRALIA

Al Muderis v Nine Network Australia Pty Limited [2023] FCA 1623

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ claim for journalist privilege under s 126K(1) of the Evidence Act 1995 (Cth) in respect of confidential sources referred to as CS#1 to #4, #6, #7, #9 and #11 to #16 be upheld.

2.    The applicant’s interlocutory application under s 126K(2) of the Evidence Act 1995 (Cth) for an order that s 126K(1) not apply to the confidential sources referred to as CS#1 to #4, #6, #7, #9 and #11 to #16 be dismissed.

3.    The applicant pay the respondents’ costs of and incidental to the claim for journalist privilege and the application for an order that s 126K(1) not apply.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    Dr Munjed Al Muderis, an orthopaedic surgeon, is suing three media companies, two individual journalists and a television presenter for defamation in relation to television and newspaper publications in September 2022. The suit arises from the following publications about Dr Al Muderis (each of which is admitted by the respondents to be of and concerning him):

(a)    broadcasting a pre-publication promotion of a 60 Minutes program on 8 and 9 September 2022.

(b)    broadcasting an episode of Channel 9’s 60 Minutes current affairs program on 18 September 2022;

(c)    publishing articles in The Age and Sydney Morning Herald (SMH) newspapers the next day, 19 September 2022;

(d)    publishing online articles on the The Age and SMH websites from 19 September 2022 (and republications of those articles in other media and social media relied upon for damages only); and

(e)    publishing a video on The Age website from about 22 September 2022.

2    The publications sued upon contain criticisms of Dr Al Muderis’ conduct of his medical practice in relation to a kind of amputee implant prosthetic procedure known as osseointegration. The substantive proceeding is being heard by Abraham J. A part-heard trial has taken place for some six weeks before her Honour. Dr Al Muderis’ case has closed and the respondents’ case has commenced. The trial is due to resume in March 2024.

3    Ms Charlotte Grieve was the main journalist involved in the investigation into allegations about Dr Al Muderis, and is one of the journalists he sues. Dr Al Muderis seeks to know the identity of 13 of the sources of information provided to Ms Grieve. The respondents have refused to disclose their identities, claiming statutory journalist privilege not to do so. Dr Al Muderis challenges the existence of the privilege and alternatively seeks the overriding of the privilege.

4    Hearing and determining this dispute would have required Abraham J to make credit findings about Ms Grieve, which in turn could amount to pre-judgment about her in the substantive proceeding. The dispute was allocated to my docket to avoid that problem.

5    This is therefore a separate adjudication on whether those claims of journalist privilege over the identity of those sources of information have been made out, and on the enlivening of a discretion to override the privilege, if established, to order disclosure of the identities of any of those 13 sources to whom the privilege is found to apply.

6    If the discretion is enlivened, it would ordinarily be exercised to override the privilege. The respondents have not suggested otherwise.

The nature of the dispute and the conclusions reached

7    Journalist privilege not to disclose the identities of the 13 sources is asserted by the respondents, including Ms Grieve, under s 126K(1) of the Evidence Act 1995 (Cth). Dr Al Muderis’ primary case is that the privilege is not established under s 126K(1) for any of the 13 sources. His alternative case is that if journalist privilege is established for any of the sources, the discretion in s 126K(2) to order that s 126K(1) does not apply should be found to be enlivened, and the Court should therefore exercise the discretion and order disclosure.

8    The discretion in s 126K(2) is enlivened if Dr Al Muderis satisfies the Court that the public interest in disclosure of evidence of the identity of each of the sources outweighs:

(a)    any likely adverse effect of that disclosure on the source (or anyone else, which is not raised by the respondents): s 126K(2)(a); and

(b)    the public interest in the communication of facts and opinion to the public by news media, including the ability of the news media to access sources of facts: s 126K(2)(b).

9    The respondents contend that the discretion is not enlivened because the public interest in disclosure of the identity of any of the sources does not outweigh the public interest in not doing so and the likely adverse effect on 12 of the 13 sources.

10    The identities of many other sources of information given to Ms Grieve have been disclosed, including medical practitioners who were previously not identified, but who now are, some of whom are witnesses for the respondents. Many former patients of Dr Al Muderis are identified and some are witnesses for the respondents. The identities of a subset of former patients of Dr Al Muderis have not been disclosed by reason of a claim of journalist privilege. That claim has not been challenged by Dr Al Muderis.

11    It is convenient to refer to each source the subject of the claim of journalist privilege as an asserted confidential source by the letters “CS”, followed by a numeral used in the evidence and submissions. The disputed claim of journalist privilege, and the dispute as to exercising the discretion to require the disclosure of each identity if such a claim is made out, relates to sources referred to as CS#1 to #4, #6, #7, #9 and #11 to #16. Each source is referred to by male pronouns in these reasons, reflecting the system used in evidence and submissions.

12    For the reasons that follow, I have decided that:

(a)    The promise not to disclose the identity of a source required by s 126K(1) was given by Ms Grieve to each of the 13 sources whose identity is sought by Dr Al Muderis. Accordingly, I find that journalist privilege has been established for all 13 confidential sources.

(b)    The discretion to compel disclosure of the identity of the 13 confidential sources under s 126K(2) has not been enlivened because:

(i)    The public interest in the disclosure of evidence of the identity of any of the 13 confidential sources relied upon by Dr Al Muderis has not been demonstrated to be substantial in the circumstances of this case, and does not outweigh the substantial public interest in non-disclosure under s 126K(2)(a).

(ii)    Additionally, the public interest in the disclosure of evidence of the identity of 12 of the 13 confidential sources (other than CS#16) has not been demonstrated to be substantial in the circumstances of this case, and does not outweigh the combined effect of the limited likely adverse effect of that disclosure on those 12 confidential sources under s 126K(2)(a) and the substantial public interest in non-disclosure under s 126K(2)(b).

Pleaded imputations, defences, and reliance on confidential sources in the publications

13    A subset of the pleaded imputations is relied upon for this privilege dispute by Dr Al Muderis, as isolated in the affidavit of his solicitor, Mr Nicholas Pullen, are as follows (inserting headings in italics underlined to identify the publications from which these imputations are drawn):

60 Minutes

[13.13]    Al Muderis cares more about his reputation, status, profits and the media than properly caring for his patients.

[13.14]    Al Muderis runs his surgical practice as a numbers game, focussing on getting large numbers of patients to have the surgeries and then neglecting their care afterwards.

[13.17]    Al Muderis preyed on patients who were vulnerable both physically and mentally in order to exploit them for his own financial gain.

[13.19]    Al Muderis's conduct of his business as a numbers game, exploiting vulnerable patients, was appalling and beneath contempt.

The Age and SMH articles and online articles

[16.12]    Al Muderis negligently failed to identify and treat an infection developed by Mark Urquhart post-surgery that developed into osteomyelitis, a chronic infection to the bone, causing him to become wheelchair bound and with chronic severe pain.

[16.16]    Al Muderis prioritised growing his practice over patient care, operating on patients who were not suitable for the surgery, talking up positive outcomes and downplaying risks to get patients to agree to surgery.

[16.25]    Al Muderis is negligent in his selection of patients for osseointegration surgery, causing life changing and life destroying consequences to patients.

Video on The Age website

[28.5]    Al Muderis employs high pressure sales tactics to the detriment of his patients in order to grow his business at all costs.

[28.7]    Al Muderis's treatment of his patients is unacceptable in his failure to treat post-surgery complications.

[28.8]    Al Muderis's practice of osseointegration surgery is unethical and dangerous.

[28.9]    Al Muderis has falsely misrepresented a rosy image of his surgical practice to the public when in fact it is unethical and dangerous.

14    I proceed upon the basis that the above constitutes the pleaded imputations that Dr Al Muderis considers best advance his case. Although I have considered all of the remaining pleaded imputations, I do not need to refer to them specifically in these reasons as no substantive argument was advanced by reference to them.

15    In the greater part, the conveying of the pleaded imputations is not denied by the respondents, with the main defences being justification (substantial truth), public interest and honest opinion under, respectively, ss 25, 29A and 31 of the Defamation Act 2005 (NSW). By way of summary overview:

(a)    the justification defence turns on the respondents proving the defamatory imputations found or admitted to have been conveyed are substantially true;

(b)    the public interest defence turns on the respondents establishing:

(i)    that the defamatory matter (that is, each publication) concerned an issue of public interest, which is not in dispute in the case; and

(ii)    that they reasonably believed that each publication was in the public interest at the time of publication; and

(c)    the honest opinion defence turns on the respondents establishing that each publication was an expression of opinion by the respondents, by their employee or agent, or by a commentator, rather than a statement of fact, related to a matter of public interest and was based on proper material.

16    By Mr Pullen’s affidavit, Dr Al Muderis characterises the respondents as having attributed a number of allegations in the publications sued upon to confidential sources, including anonymous medical practitioners, and isolates and thereby relies upon the following statements from those publications:

[23]    The following statement appears at paragraph 5 of the SMH Article and The Age Article (which are Annexures C and E to the Statement of Claim, respectively):

But now more than 25 patients, 15 surgeons and a dozen of Al Muderis’ current and former business associates have told the Herald and 60 Minutes of concerns about the surgeon’s approach to patient selection and aftercare. He has also been accused of using high-pressure sales tactics to boost patient numbers.

[24]    The following statement appears at paragraph 6 of the SMH Online Article and The Age Online Article:

When Mark Urquhart's new doctors saw the state of his legs, they were horrified.

[25]    The following statement appears at paragraph 16 of the SMH Online Article and The Age Online Article (which are Annexures D and F to the Statement of Claim, respectively):

Interviews with more than 25 patients, 15 surgeons and a dozen of Al Muderis’ current and former business associates have raised serious questions around the professor's approach to patient selection and aftercare.

[26]    The following statement appears at paragraph 20 of the SMH Article and paragraph 23 of The Age Article:

Interviews with more than 25 patients, 15 surgeons and a dozen of Al Muderis' current and former business associates have raised questions about the professor's approach to patient selection and care.

[27]    The following statement appears at paragraph 44 of the SMH Article and paragraph 46 The Age Article:

But Shona, some of his patients and other surgeons say the criteria broadened to the point where Al Muderis developed a reputation for rarely saying no.

[28]    The following statement appears at paragraph 58 of the SMH Online Article and The Age Online Article:

But Shona, some of his patients and other surgeons say that, as he performed more surgeries and became more confident, the criteria broadened to the point where Al Muderis developed a reputation for rarely turning anyone away.

[29]    The following statements appear at paragraphs 63-64 of the SMH Article and paragraphs 65-66 The Age Article:

A number of high-profile surgeons working in Australia's largest hospitals disagree.

Speaking anonymously because they were not authorised or not willing to speak publicly, they said Al Muderis’ “aggressive” approach to surgery has been described as an “open secret”.

One described Al Muderis’ patient selection as “entirely inappropriate”. A man, “who was homeless, psychotic, living under a bridge, came to us in acute psychosis 72 hours after the treatment”, the surgeon said.

[30]    The following statements appear at paragraphs 95-98 of the SMH Online Article and The Age Online Article:

A number of high-profile surgeons working in Australia's largest hospitals disagree. Speaking anonymously because they were not authorised or not willing to speak publicly, they said Al Muderis’ “aggressive” approach to surgery has been described as an “open secret” in the medical fraternity.

One described Al Muderis’ patient selection as “entirely inappropriate”. A man, “who was homeless, psychotic, living under a bridge, came to us in acute psychosis 72 hours after the treatment”, the surgeon said. “He was found at St Leonards station walking on his prosthetic stump that was infected.”

Osseointegration “was never intended to be done en masse,” said another, “It’s not something that you should be banging into everybody.”

A third described an anorexic woman who was a pathological exerciser, and who had her legs amputated after an infection. Al Muderis gave her osseointegration so she could continue running. “If you interview the patient, she will say it was done right,” said the surgeon. “But if this person wants to pathologically exercise, we shouldn’t enable that.”

The paragraph numbering referred to by Mr Pullen is the numbering that has been added to the publications as annexed to the statement of claim, in the conventional pleading manner, for ease of navigation and identification. The “Shona” referred to in the article extracts at [27] and [28] of Mr Pullen’s affidavit reproduced above is a nurse formerly employed by Dr Al Muderis, Ms Shona Stewart.

17    It can readily be seen from Mr Pullen’s narrative as to the source of each of the above extracts that they are from the SMH newspaper article or online article, and/or The Age newspaper article or online article. I proceed upon the basis that the above extracts from those publications constitute the parts that Dr Al Muderis considers best advance his case. Although I have considered all of the rest of the publications, I do not need to refer to the text or transcript of the balance of them specifically in these reasons as no substantive argument was advanced by reference to them.

Section 126K and the applicable principles

18    It is convenient to commence with the state of the law before the enactment of the provisions creating journalist privilege in the Evidence Act. The protection of the identity of journalists’ sources has long been known as a matter of professional ethics and integrity. This is a matter of common knowledge and is reflected in the authorities. However, there was no common law immunity from disclosure of a source’s identity when such disclosure was found by a court to be necessary in the interests of the administration of justice: see British Steel Corporation v Granada Television Ltd [1981] AC 1096 at 1169-1170 (Lord Wilberforce) and at 1179-1181 (Viscount Dilhorne).

19    The conclusion reached by the House of Lords in Granada is more nuanced than the above bare statement of principle would suggest. Lord Wilberforce quoted with approval the observations of Lord Denning MR in the contempt of court case of Attorney-General v Mullholland; Attorney-General v Foster [1963] 2 QB 477 at 489-490. That passage, also quoted by Viscount Dilhorne, was to the effect that:

(a)    the only profession subject to a privilege from disclosing certain information to a court was the legal profession, being the privilege of the client, and that it did not extend to other professions such as the clergy, bankers or doctors;

(b)    that did not mean that confidences of those kinds would not be respected, because a direction to a witness to answer such a question will entail a judge weighing the conflicting interests between a professional maintaining a confidence and the ultimate interest in justice being done;

(c)    if a judge determined a question going to identity of a source was relevant, proper and necessary in the administration of justice, the journalist must answer as there was no immunity or privilege not to do so.

20    Both Lord Wilberforce and Viscount Dilhorne in Granada agreed with what had been said on this topic by Dixon J in McGuiness v Attorney General of Victoria [1940] HCA 6; 63 CLR 73 at 102-103. In McGuiness, the editor of a newspaper who was called to give evidence at a royal commission inquiring into corruption claimed he could not be compelled to disclose the source of information confidentially obtained either at that royal commission or at any subsequent trial in a court. That claim failed. The passages from Dixon J in McGuiness that were referred to by Lord Wilberforce and quoted by Viscount Dilhorne in Granada:

(a)    referred to the “inevitable conflict between the necessity of discovering the truth in the interests of justice on the one hand and on the other the obligation of secrecy or confidence which an individual called upon to testify may in good faith have undertaken to a party or other person”;

(b)    referred to a refusal to compel discovery of the names of informants in libel proceedings, grounded in the limitations of discovery, as a rule of practice rather than a rule of law (commonly known as the newspaper rule, and ordinarily upheld only in the pre-trial stage of a proceeding); and

(c)    concluded that this practice could form no ground for holding that a lawful excuse existed for the editor’s refusal to answer questions as to the identity of his sources of information.

21    By way of conclusion, Lord Wilberforce in Granada said that:

To contend that in principle, journalists enjoy immunity from the obligation to disclose which may however be withheld in exceptional cases is, in my opinion, a complete reversal of the rule so strongly affirmed.

22    Viscount Dilhorne in Granada to like effect observed that journalists did not enjoy the privilege of not being compellable to disclose the sources of their information, whether as a witness or in discovery.

23    Granada therefore confirmed the common law principle that there is no journalist privilege to avoid compulsion to reveal the identity of a source by testimony, the production of a document, or otherwise, but also that the identification of a source will not necessarily be required. The requirement to answer a question as a witness or in interrogatories, or to remove a redaction in a discovered or tendered document, may still have to be justified as being relevant and necessary.

24    The High Court in John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; 165 CLR 346 at 354 described the reasoning of the majority in Granada as convincing by reference to the passages described above, holding:

It is a fundamental principle of our law, repeatedly affirmed by Australian and English courts, that the media and journalists have no public interest immunity from being required to disclose their sources of information when such disclosure is necessary in the interests of justice: see McGuinness (1940) 63 CLR at pp 102-104; Granada [1981] AC at pp 1169-1170, 1179-1181. The point is that there is a paramount interest in the administration of justice which requires that cases be tried by courts on the relevant and admissible evidence. This paramount public interest yields only to a superior public interest, such as the public interest in the national security. The role of the media in collecting and disseminating information to the public does not give rise to a public interest which can be allowed to prevail over the public interest of a litigant in securing a trial of his action on the basis of the relevant and admissible evidence. No doubt the free flow of information is a vital ingredient in the investigative journalism which is such an important feature of our society. Information is more readily supplied to journalists when they undertake to preserve confidentiality in relation to their sources of information. It stands to reason that the free flow of information would be reinforced, to some extent at least, if the courts were to confer absolute protection on that confidentiality. But this would set such a high value on a free press and on freedom of information as to leave the individual without an effective remedy in respect of defamatory imputations published in the media.

(Footnotes embedded)

25    The very privilege denied any existence by the common law, as explained by both Lord Wilberforce and Viscount Dilhorne in Granada, and expressly approved by the High Court in Cojuangco, was brought into existence in Ch 3, Pt 3.10, Div IA (now Div 1C) of the Evidence Act in 2011, subject to a discretionary exception exercisable upon a superior public interest in disclosure being established. Substantially similar provisions were introduced in the versions of the Uniform Evidence Acts in New South Wales, Victoria and the Australian Capital Territory, although the provisions in Victoria are more detailed in relation to the definition of a journalist. Both the statutory privilege, and its exception, were set out in a new s 126H, which was later renumbered to be s 126K. The terms of s 126K did not change, such that authority on the former s 126H applies equally to s 126K.

26    It is first necessary to have regard to the defined terms that appear in s 126J (formerly s 126G). Section 126J provides that in Div 1C:

informant means a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium.

journalist means a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium.

news medium means any medium for the dissemination to the public or a section of the public of news and observations on news.

27    Section 126K (formerly s 126H) provides as follows; deploying the above defined terms “informant” and “journalist”:

126K    Journalist privilege relating to identity of informant

(1)    If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be ascertained.

(2)    The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs:

(a)    any likely adverse effect of the disclosure on the informant or any other person; and

(b)    the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.

(3)    An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit.

28    The enactment of s 126K was necessarily a legislative rejection of the paramountcy at common law of party to litigation having access to the identity of journalists’ sources when that is shown to be relevant and necessary to make effective the pursuit of that suit, as found in Cojuangco in the context of interpreting and endorsing Granada. Instead, the regime enacted by s 126K gives paramountcy to the confidentiality of a source by way of the creation of a statutory privilege from compulsory disclosure of a source’s identity or of information to enable it to be ascertained, arising from a proven promise to maintain as confidential the identity of a source. If the privilege is established, it can only be displaced at the discretion of a court if the party seeking disclosure establishes a superior public interest in that disclosure taking place sufficient to outweigh both any likely adverse effect on a source or anyone else in the case at hand, and the public interest in the media communicating facts and opinions to the public and in the ability of the media to access sources of facts.

29    The aspects of Cojuangco which treated confidentiality of journalists’ sources, acknowledged by the High Court as a vital ingredient in investigative journalism, as falling short of being a source of immunity from disclosure, were therefore substantially departed from by the enactment of s 126K. As the text of s 126K reproduced above at [27] reveals, the key change was creating the journalist privilege from compulsion to disclose the identity of a source that was found not to exist in Cojuangco, subject to proving a promise not to do so and qualified by an exception to the application of that privilege. As noted above at [28], the exception is that of a court being able exercise a discretion to order disclosure when satisfied that the public interest in doing so outweighs both any likely adverse effect of the disclosure on source or any other person and the general public interest in the communication of facts and opinions to the public by the news media, and the ability of the news media to access sources of facts. The bar for the application of the exception is therefore inherently substantial and onerous. Merely being able to run a somewhat better case if the identity of a confidential source is required to be revealed will generally not suffice. The facts and circumstances in a given case may also serve to elevate the public interest in disclosure not taking place.

30    The public interest in communication to the public by the media, and the corollary of access to sources of facts by the media, is not expressed in terms that are specifically concerned with any particular case, although the value and thus weight of that public interest may be illuminated or improved by the particular facts and circumstances before a court. Viewed in that way that may in some cases at least entail, contrary to Cojuangco, and using the High Court’s words, “setting such a high value on a free press and on freedom of information as to leave the individual without an effective remedy in respect of defamatory imputations published in the media”, unless that individual establishes a greater public interest in disclosure that also outweighs any likely adverse impact on the source or anyone else. The focus of the second part of the exception in s 126K(2)(b) is not on the interest in non-disclosure of the identity of sources in the individual case, but on the public interest at large in media communication to the public of facts and opinions and in media access to information, which is advanced by not disclosing the identity of sources. However the proven interest in non-disclosure in a given case may inform and elevate the public interest in non-disclosure, by giving content to the otherwise assumed impact on being able to publish, and for that purpose to obtain information, if confidentiality of sources is not able to be maintained.

31    It should be noted that the disadvantage of maintaining confidentiality as to the identity of the 13 sources does not just accrue to Dr Al Muderis; it also has the necessary effect of making the evidence able to be relied upon by the respondents more limited and therefore less weighty. In many cases, the evidentiary value for a journalist or publisher of referring to having spoken to a source whose identity is withheld is likely to be confined to little, if any, more than the fact of having taken the step of having that conversation and having in some way acted upon it, such as by following a line of inquiry. The conveying of the content of what such a source told Ms Grieve is likely to be untestable and largely hearsay, the value of which may be slight if it is found to be admissible at all. It is necessary to consider all of the circumstances, if and when the enlivening of the discretion comes to be considered, and if enlivened, the exercise of the discretion falls to be exercised.

The promise of confidentiality needed to give rise to journalist privilege: s 126K(1)

32    In Ashby v Commonwealth of Australia (No. 2) [2012] FCA 766; 203 FCR 440, Rares J made the following observations about the assertion and establishment of journalist privilege (replacing in square brackets, for ease of reading and currency, his Honour’s references to the then s 126G with references to s 126J, and replacing references to the then s 126H with references to s 126K):

[19]    How can the privilege be asserted? First, [s 126J] defines the informant as being the person who gives information to a journalist in the ordinary course of the journalist’s work in the expectation that that information may be published in a news medium. Secondly, the section defines the “journalist” as being the person who, in the practice of his or her profession, may be given information by an informant in the expectation that that information may be published in a news medium. Thus, the statutory definitions of “informant” and “journalist” in [s 126J] create a relationship that must exist between the particular information conveyed and the persons between whom it is communicated. The privilege in [s 126K(1)] relates to an anterior promise made by the journalist not to disclose the informant as the journalist’s source of that particular information: ie the journalist’s promise of confidentiality referred to in [s 126K (1)] is not to disclose the informant’s identity, or to enable that identity to be ascertained, in respect of that person as being the source of the particular information.

[20]    If [s 126K(1)] were construed in the way in which Mr Lewis asserted, journalists would be able to resist producing, or disclosing to a court, any document or information provided by a person to whom they had once promised confidentiality that discloses the identity of the source or enables it to be ascertained, regardless of the connection between the promise and the particular information. This argument would extend the privilege to all instances where the journalist had spoken to, say, a politician on a confidential basis, or “off the record”, about a particular subject matter, even though they may talk together on a daily basis “on the record” about other matters.

[21]    The section is not designed to produce such a result. Its purpose is to ensure that a person who provides particular information can do so knowing that his or her identity as its source can be protected by the journalist because he or she is not compellable to disclose that identity by force of [s 126K(1)]. The privilege exists so that, ordinarily, the journalist cannot be compelled to disclose or identify his or her informant or source of particular information obtained for the purposes of the journalist’s work. That privilege is, however, subject to the Court’s power created by [s 126K(2)], to override it in certain circumstances.

33    After quoting the second half of the passage of Cojuangco at 354 reproduced above at [24], emphasising the High Court’s observation that information “is more readily supplied to journalists when they undertake to preserve confidentiality in relation to their sources of information”, Rares J then observed (again aligning the provisions referenced with the current numbering in square brackets):

[23]    The privilege in [s 126K(1)] changes the emphasis of the balance that the common law achieved in favour of the protection of the sources. But, the new privilege is also intended to protect the free flow of information and the circumstances of its imparting. That privilege was created to meet a well recognised concern for the protection of the confidentiality of journalists’ sources of information balanced against the interests of justice in litigation. I am of opinion that it would be unrealistic to construe [s 126K(1)] in a way that gave journalists, in effect, carte blanche to refuse to produce any documents or give evidence that disclosed the identity of a source, or enabled it to be ascertained, merely because the journalist once had had a connection with a person whose identity the journalist had promised not to disclose when imparting particular information.

[24]    The purpose of the privilege is to protect the confidentiality of the informant as the journalist’s source of the particular information the subject of his or her claim under [s 126K(1)]. That is why it is essential to understand that the definitions in [s 126J] tie the privilege conferred by [s 126K(1)] back to the imparting of the particular information given by the informant and to the occasion of that imparting. The privilege exists so that an informant cannot be identified as having provided that particular information or as having been the source of, in the usual situation, the journalist’s story containing that information. There is no indication that [s 126K(1)] intended to provide confidentiality for the identity of the informant as the provider of information, where and at a time that the circumstances of its imparting are not, or are no longer, confidential.

34    In Kumova v Davison [2021] FCA 753, Flick J observed at [49]:

In resolving this further submission advanced on behalf of Mr Kumova, it has been concluded [by Flick J] that:

•    the “promise” referred to must be a promise “anterior” to the provision of the information;

•    the “promise” must be a promise “not to disclose” the identity of a person who can be characterised as an “informant”;

•    the “promise” referred to must be an express “promise” in respect to the provision of identifiable information as opposed to any promise that may otherwise be inferred, or any promise that could be implied by reference to (for example) the character of the information being disclosed; and

•    on the evidence, Mr Davison has failed to discharge the onus of making out that any such promise was “anterior” to the provision of information – the evidence making good the proposition that there was a “promise” not to disclose the identity of the “corporate advisor” but, at best, being uncertain as to when that “promise” was first made.

35    The first of Flick J’s above conclusions in Kumova as to the need for an anterior promise was expressed as seizing upon the observations of Rares J in Ashby at [19]; the second of those conclusions as to the promise being not to disclose the identity of the source was derived by his Honour from the terms of s 126K(1); and the third of those conclusions as to the promise needing to be express was expressed by his Honour as seizing upon the observations of Rares J in Ashby at [20].

36    Flick J then observed by way of important qualification or reservation as to the first of those conclusions as to the need for a promise to be anterior to the giving of information, at [51]:

Some reservation may nevertheless be expressed [by Flick J] as to any conclusion that there must necessarily be in all cases the extraction of a promise prior to the provision of any information at all. That reservation arises from:

•    the terms of s 126K(1), the sub-section being silent as to when any promise need be given;

•    the definition of the term “informant” and the reference in that definition to the “expectation” of the informant; and/or

•    the facts of a particular case.

As to the last consideration, in some cases in the course of a single communication (for example) the very content and subject matter of what is being conveyed may well attract an “expectation” on the part of the person conveying the information and the “journalist” receiving it, that all that is said is being conveyed in the “expectation” that the identity of a person will not be disclosed. It may matter not, in such cases, that the promise not to disclose the person’s identity comes mid-way through the exchange of information or even at the very end. A conclusion that the provision of all information has been conveyed pursuant to such a “promise” may well be sufficient to satisfy the terms of s 126K(1). It is, however, unnecessary to resolve the precise point of time during a conversation (or even a series of conversations within a confined timeframe) when a “promise” need be given. In the absence of any necessity to address such circumstances, deference is expressed to the view of Rares J in Ashby.

(emphasis added)

37    I share Flick J’s reservations about the views expressed in Ashby as to the promise always having to be anterior to the provision of information in the expectation that it may be published, but cannot so easily sidestep them in this case because the issue is squarely raised by the competing positions.

38    Dr Al Muderis interprets Rares J’s observations above in Ashby, as endorsed in a qualified way by Flick J in Kumova, as meaning that:

A “promise” sufficient to satisfy the condition precedent in s 126K(1) must be:

(a)    an express promise not to disclose the source’s identity, not merely an implicit expectation that his or her identity will not be disclosed;

(b)    a promise not to disclose the source’s identity as the source of the particular information in question; and

(c)    a promise made anterior to the provision of that particular information.

39    I do not accept that the language in s 126K(1) must be read in such a rigid way. Nor am I convinced that this interpretation is necessarily supported in all circumstances by either Ashby or Kumova, noting in any event that judicial observations about the meaning of legislation in one context in terms of facts circumstances and arguments, may not necessarily reflect the legislative intent when applied to a different context. At all times, the primary task is to have regard to the text, context and subject matter of the legislation in question.

40    Section 126K(1) refers to a promise, not to an express promise. Rares J in Ashby does not use the word “express”. Words that change the meaning of a provision should not be read into legislation unless truly necessary. The doubtful implied dichotomy between an express promise and a promise conveyed non-expressly by implication and context, or by other means, as advanced by Dr Al Muderis is something of a diversion or distraction. What matters is that the journalist concerned has given to the source, to the satisfaction of the Court, what amounts in all the circumstances to a promise not to disclose the source’s identity, of the kind contemplated by s 126K(1).

41    Context is an important factor in interpreting what has been said and determining whether the threshold for the creation of journalist privilege has been met. Ordinary people do not speak in the language of statutes, although I note that a journalist could make life easier for herself or himself simply by expressly saying to the source something to the effect that they promise not to disclose the source’s identity without their permission, and perhaps making a short written, signed and dated note of having done so, using an anonymous reference to the source, to facilitate later proof if required. Putting to one side such counsel of almost perfection, the application of s 126K(1) must focus on of what has taken place substance, not mere form or infelicitous use of language. The question to be asked and answered is whether, in all the circumstances, a promise has been given to a source of news information not to disclose their identity, so as to create journalist privilege. What really matters is what it is accepted was conveyed to the source by way of words and associated conduct in context, as may be deposed to by the journalist.

42    The analysis of s 126K(1) by Rares J in Ashby at [19]-[21] and [23]-[24] reproduced above, which resulted in his Honour limiting the scope of journalist privilege by reference to when a promise is given relative to when information is given, is incomplete. As a result, and for the following reasons, I consider that the conclusion his Honour reached in that regard is, to that limited extent, contrary to the terms of s 126K(1) by which I am bound, such that I will not be following it, even though I do not consider that it makes much, if any, material difference on the evidence in this case considered in considerable detail below. The same may be said of the analysis of Flick J in Kumova [49], although at [51] his Honour gives an indication of a different conclusion being available in different circumstances, with which I agree.

43    Sections 126J(1) and 126K(1) may be seen to be addressing two separate aspects of journalist privilege:

(a)    The first aspect is the relationship of an informant (source) and journalist as each is defined in s 126J(1), and the source giving to the journalist information in the expectation that it may be published, which is necessary to give rise to the possibility of journalist privilege due to the use of those defined terms in s 126K(1). Being practical, the real content of the expectation is likely to be that part of the information given may be published, as it is unlikely to be verbatim and without any addition or omission.

(b)    The second aspect is the giving of a promise by the journalist to the informant (source) not to disclose his or her identity, in context as the source of that information, as provided by the first part of s 126K(1), which is necessary to give rise to the existence of journalist privilege under the second part of s 126K(1).

44    The definitions in s 126J(1) thus require a relationship, however new, tentative, embryonic or fleeting, between an active working journalist and a source of information (“informant” as defined) within which the source provides the journalist with information in the expectation that it (or some part of it) may be published. What is thereby conveyed may conveniently be described as news information. It is only the provision of news information within such a relationship and with that expectation, coupled with the promise not to disclose the identity of the source of that information, that is capable of creating the journalist privilege bestowed by s 126K(1).

45    Once s 126K(1) is engaged:

(a)    by the definitions of journalist and informant (source) in s 126J(1) being met; and

(b)    by the giving of a promise, by a journalist as defined to a source (“informant” as defined) who has given him or her news information, and been asked not to disclose the source’s identity, in accordance with the first part of s 126K,

the second part of s 126K(1) both creates the privilege and in doing so, describes its ambit.

46    In this case, there is no suggestion that Ms Grieve was not a journalist as defined, nor that each of the 13 confidential sources was not an informant as defined. It is the giving of the requisite promise by Ms Grieve to any of those 13 sources that is disputed in relation to the operation of s 126K(1) and thereby the creation of journalist privilege for each is disputed.

47    The ambit of journalist privilege, once established, is wide and is qualified only by the terms of the second part of s 126K(1) itself. Neither the journalist nor the journalist’s employer can be compelled to give any answer or produce any document that would disclose the identity of the source or enable that identity to be ascertained. Any such answer to a question and any such document may conveniently be described as identifying information. It is important to emphasise that the privilege not to provide identifying information is able to be claimed by both the journalist who was given the news information by the source, and by the employer of that journalist; cf Ashby at [17] referring incompletely only to the journalist being given this statutory right, being the only person asserting the privilege in that case.

48    The relationship and communication giving rise to the provision of news information is what engages the definitions in s 126J(1) so as to make s 126K(1) apply in the first place. But it is only identifying information that is protected from disclosure. A journalist and employer cannot evoke the privilege to resist providing additional news information provided to the journalist by the source going beyond what was actually published, nor resist answering questions about that news information, provided it does not entail disclosing identifying information. The ambit of the privilege is confined to the terms of the second part of s 126K(1).

49    While news information provided to the journalist may (and generally will) include identifying information, the scope of identifying information is neither confined to, nor exhausted by, the scope of that news information. A journalist and journalist’s employer may (and perhaps inevitably will) have other sources of identifying information in relation to a source of news information. The privilege denying compulsory disclosure extends to all identifying information held by a journalist and the employer from any source, obtained at any time. The promise upon which s 126K(1) operates is not upon news information but rather upon identifying information, whether or not that identifying information forms any part of the news information provided by the source.

50    It follows that Rares J in Ashby was correct to say that the relationship between the informant (source) and the journalist created by the definition of those two terms in s 126J(1) must be established for s 126K(1) to apply. But that necessary step does not on its own fully address the scope of the privilege created by s 126K(1) once that circumstance is proven to exist. Once a promise has been made not to reveal the informant’s identity in the context of the provision of the news information, then the absence of compulsion on the part of the journalist or the journalist’s employer applies to any identifying information, irrespective of when or how it was obtained by the journalist or employer.

51    That said, there must be a nexus between the provision of some news information by the source, and the provision of the promise by the journalist, because it is that combination that engages s 126K(1) and thereby enables journalist privilege to come into existence.

52    Adopting the observations by Flick J in Kumova at [51] reproduced above, while it may be accepted that the identity protected is that of a source of particular information, rather than being at large, that does not necessarily mean that the identity of the source will not also be protected in relation to identifying information provided before the promise is given, provided there is a nexus and a reasonable temporal proximity between the two. The terms of s 126K(1) require no more. If news information is given in the course of a conversation in which a promise is given, that is enough and the identity of the source of that information is prima facie protected, subject to the discretion in s 126K(2). This reflects the practical and human reality in which a conversation between a source and a journalist may develop, and during which the source’s requirement for confidentiality as to their identity may emerge. This may extend to identifying information obtained preceding the moment of the giving of the promise, including identifying information from another source.

53    Put another way, even if the promise is not given until after the provision of some news information, following which more news information may be given, the privilege is operative from the time it is given as to the journalist not being compelled to provide any identifying information, or potentially identifying information, irrespective of when that identifying information is provided, or by whom, or when. The express shelter given by s 126K(1) is to deny compellability to answer questions or produce documents that would disclose the identity of the source, or enable that source to be ascertained.

54    The assessment of the evidence relied upon by the respondents to establish the existence of the requisite promise, and thereby the existence of the claimed privilege, is carried out below with the above conclusion as to what is required to be established. It should be noted that Dr Al Muderis’ argument that a promise of confidentiality must come prior to any news information being given by a source is only expressly advanced with respect to CS#11 and CS#13. For CS#11, the application of the Ashby test would have produced the same result.

Enlivening the discretion to override the privilege: s 126K(2)

55    The step of exercise of the discretion after it has been enlivened may be a small one, depending on the circumstances. Conceivably, there could be disentitling conduct on the part of the applicant seeking the exercise of an enlivened discretion, or some other reason, not to exercise the discretion. In this case, the real issue is whether the discretion has been enlivened by the public interest in disclosure outweighing the public interest in not doing so, and the likely adverse effects of disclosure. The respondents have not suggested, let alone established, any reason for not exercising the discretion if it is enlivened. It follows that the key issue in this case, if and when journalist privilege has been found to exist, is whether the discretion to override it has been enlivened. Dr Al Muderis believes that he knows the identity or likely identity of seven of the 13 confidential sources drawn from the available information in the evidence and inferences that can be drawn. Accordingly, he submits that there is a substantially diminished public interest in denying him being able to confirm that suspicion or belief in relation to those seven sources by dispensing with the absence of compulsion to do so. As noted below, Dr Al Muderis did not advance any case of waiver of journalist privilege, as opposed to an argument that the separate disclosure of information meant that the identify of some confidential sources could be deduced.

56    I am unable to agree that there is, in principle, no significant public interest in such a suspicion or belief not being confirmed by ordering disclosure, upon the assumption in Dr Al Muderis’ favour that the suspicion or belief is well-founded in the first place, effectively treating the evidence relied upon by him as establishing a sound or better basis for the belief advanced as to the identity of seven of the confidential sources. As was pointed out by the New South Wales Court of Criminal Appeal in the parallel area of public interest immunity over the disclosure of the identity or status of an informer, the rationale for the privilege is that sources may dry up if confidentiality is not maintained even if the person seeking disclosure already knows the substance of the information they are after: see Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 679-680. The same rationale applies to the public interest identified in s 126K(2)(b). There is a world of difference between the source being identified by other means, and a journalist being compelled to reveal it, including by way of any confirmation of a suspicion or belief to that effect.

57    Even if I am wrong about that, I would not attach any significant or determinative weight to such a suspicion or belief, however well-founded, either in materially elevating the weight of a public interest in favour of disclosure, or in materially diminishing the weight of the public interest against disclosure, especially having regard to the non-case-specific terms of s 126K(2)(b). Subject to any question of waiver of privilege applying, which has not been asserted by Dr Al Muderis so does not arise for determination, s 126K(1) protects a journalist’s determination to keep their promise. That is, what really matters is the inherent public interest in encouraging (or not discouraging) the flow of information to the news media, no less than a police officer’s determination not to reveal or confirm by their own hand that a person is an informer so as not to discourage future informers.

58    Once it is established that the promise to a source not to disclose their identity is established in accordance with s 126K(1), in the absence of a sufficient basis for the operation of the exception in s 126K(2) being made out, there is no compulsion to recant on the promise, even if the answer to a question about the identity of a source may seem obvious. The journalist’s promise remains intact, even if circumstances pose a substantial likelihood or even virtual certainty of the identity being ascertained by other means.

59    I therefore turn to the substantive principles applicable, and the arguments advanced about them, as to the requirements to be met for the exception to s 126K(2) to be made out.

60    Cojuangco has nothing to say directly about the operation of s 126K, either as to the existence of the privilege or it being overridden by a discretionary order to disclose the identity of the source. As John Dixon J pointed out in Madafferi v The Age Company Ltd [2015] VSC 687; 50 VR 492 at [53], in relation to the exercise of the discretion in s 126K(2), “[t]he Cojuangco principle is not the basis for assessing the weight or degree of significance of the public interest in disclosure for the application of the statutory test”.

61    That said, as Dr Al Muderis submits, and I accept, the disclosure of evidence of the identity of a source may be a “substantial matter of public interest, and not just of private interest to the individual applicant”, depending on the issues in dispute. This is an acknowledgement by Dr Al Muderis that merely his private interest in disclosure will not suffice. He must demonstrate a substantial public interest transcending his individual interest. As I understand his argument, reliant upon the reasoning in Cojuangco at 354 at least by analogy, he asserts that there is an inherent public interest in the interests of justice being advanced by a litigant being able to vindicate rights effectively in litigation. That may be accepted as far as it goes, but it only goes as far as a real impediment that non-disclosure of each disputed source, and collectively as to all disputed sources, to the effective bringing of his case is demonstrated, including in seeking to defeat the defences advanced by the respondents, insofar as that can be characterised as a public interest. The extent of that impediment is then weighed against the considerations in s 126K(2)(a) and (b).

62    As was pointed out by John Dixon J in Madafferi in relation to the balancing exercise required by s 126K(2), in terms with which I generally agree:

[47]    … The public interest in the disclosure of the informant goes to the fairness of the trial of the issues raised in the proceeding, the interests of justice. The issues of likely adverse effect and public interest in facts and opinions communicated by an informed media have nothing to do with the fairness of the trial process, but a great deal to do with the proper functioning of a free democratic society under the rule of law. The only sense in which one set of considerations can outweigh the other is by a value judgement, which requires the attribution of weight, or degree of significance, to the factors being considered, but not for a calculation.

[48]    To reject the notion that the confidentiality of journalist’s sources deserves absolute protection, the High Court in Cojuangco stated that:

The role of the media in collecting and disseminating information to the public does not give rise to a public interest which can be allowed to prevail over the public interest of the litigant in securing a trial of his action on the basis of the relevant and admissible evidence. No doubt the free flow of information is a vital ingredient in the investigative journalism which is such an important feature of our society. Information is more readily supplied to journalists when they undertake to preserve confidentiality in relation to their sources of information.

The High Court stated 20 years ago that the appropriate balance would not be struck where such a high value on a press freedom and on freedom of information was set so as to leave an individual without an effective remedy in respect of defamatory imputations published in the media.

[49]    This analysis brings into focus the concept of an effective remedy. To what degree will the conduct of a fair trial for the benefit of the plaintiff be impaired by maintaining confidentiality of sources? On the other hand, given the obvious public interest in investigative journalism, which the plaintiff accepts, in what degree will detrimental impact on that public interest or likely adverse consequences for the informant or any other person outweigh the conduct of a fair trial?

[50]    The onus and standard of proof on the parties when advocating for that value judgment to be exercised in their favour are identified by an analogy with the scales of justice. The plaintiff bears the onus to tip the balance of the scales to favour disclosure, which is the required standard. The plaintiff bears the evidentiary onus of placing proof of relevant considerations in one pan, while the defendants seeking to tip the balance in favour of confidentiality by reference to other considerations bear an evidentiary onus to place proof of those other considerations in the opposing pan. The court’s value judgment turns on assessing the weight, or degree of significance, of the opposing sets of considerations or values. That exercise may be affected by the extent to which the party that does not bear the evidentiary onus has sought to negate or minimise considerations put against its position. In respect of adverse effects from disclosure, which is a factual question, such consequences must be likely, in the sense of probably or apparently going to happen.

[51]    Some preliminary observations may be made before turning to analysis of the submissions on the pleadings and the evidence on the application. First, it is not necessary for a fair trial to be had that there be complete, or perfect, disclosure of all relevant and admissible evidence. Secondly, whether a fair trial is being conducted in the court is, quintessentially, an assessment to be made by the trial judge, who is best placed to make that assessment on the basis of the issues that remain to be determined at trial; on the pleadings, in the light of counsel’s opening statements, and on examination and cross- examination of witnesses and other relevant circumstances that occur in the course of the trial.

63    Justice John Dixon in Madafferi then considered the terms of the Victorian legislation dealing with the modern conduct of litigation and in particular pre-trial disclosure, which are not dissimilar to Pt VB of the Federal Court of Australia Act 1976 (Cth). His Honour considered the limitations on the residual operation of the newspaper rule in the pre-trial interlocutory phase of a proceeding, which is now of no real relevance given the mid-trial status of this proceeding. His Honour then continued as follows, with which I again generally agree:

[54]    The legislation contemplates, by its terms, that a court may determine that journalist’s privilege not apply in interlocutory or preliminary proceedings. It also contemplates, by s 126K(2), that there can be circumstances in which the disadvantages to the plaintiff in assessing the strength of the defendants’ defence may be a price that has to be paid, given the strength of the countervailing public interest [footnote: See Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010 [8], [15]]. The public interest in free flow of information may outweigh other public interests which apply in relation to the production of documents for the purposes of litigation. Each decision will turn on the particular circumstances.

…

[56]    When a qualified privilege (or other) defence makes the identity of the source relevant, there are at least two particular issues relevant to whether the interests of justice require disclosure of the source that may affect, in the context of a balancing exercise, a court’s assessment of the degree of interference with the public interest in the administration of justice that is occasioned by nondisclosure.

[57]    The first issue is how the defendant’s reliance on the undisclosed sources makes their identity relevant. It is evident that journalists need to exercise particular care in their use of information from confidential sources in order to avoid waiver of journalist’s privilege. The question of whether a plaintiff is unfairly denied an effective remedy by non-disclosure may be raised because of the conduct of the defendant. The extent to which the identity of sources is relevant to the proper administration of justice could depend upon the way information from the confidential source, and the nature and integrity of the source, is used by the defendant in its communication. That was the issue in Cojuangco.

…

[59]    Secondly, the issues raised in the proceeding by the defences taken may make the identity of sources relevant in a way that is inconsistent with the maintenance of the privilege for like reasons. The defence may put in issue the way information from the confidential source, and the nature and integrity of the source, contributed to the reasonableness of publication. Fairness may dictate that the privilege is waived by the issue raised on the pleadings.

64    The public interest that Dr Al Muderis advances is directed to the barriers he faces to success by reason of being limited in challenging the defences advanced by the respondents, especially as to the relatively new public interest defence in s 29A of the Defamation Act, rising to the level of public interest. Unless the impediment is shown to be substantial, it is unlikely to rise higher than a somewhat amorphous and incremental improvement of his prospects of success, falling short of not being able to amount an effective case, and therefore falling short of giving rise to much, if any, public interest at all. That is, it will not be an argument that constitutes a material advance on the now defunct common law test in Cojuangco, in which a general public interest in the administration of justice only yielded to a superior public interest such as public interest immunity, which did not include the public interest in a journalist maintaining the confidentiality of their sources of information. That countervailing public interest in confidentiality as to identity reflected in the privilege being able to be recognised if the terms of s 126K(1) are met, is now recognised as a superior public interest, subject to being overridden by discretion when an even greater public interest in disclosure is made out. Any likely adverse effects of disclosure on a source or anyone else also weigh on the side of non-disclosure.

65    Such a balancing of competing public interests is familiar to courts, such as in weighing the competing public interest reasons for and against allowing illegally obtained “real” rather than confessional evidence to be used in criminal proceedings: see Bunning v Cross [1978] HCA 22; 141 CLR 54, applying R v Ireland [1970] HCA 21; 126 CLR 321 at 335 (Barwick CJ): see in particular Stephen and Aickin JJ in Bunning v Cross at 75; and the terms of s 138 of the Evidence Act. Section 138 altered the common law starting point:

(a)    from one of prima facie admissibility of relevant evidence obtained illegally, with a discretion to exclude the evidence, as found in Bunning v Cross and R v Ireland, for which the person seeking exclusion bore the onus (ordinarily the defendant or accused);

(b)    to prima facie inadmissibility under s 138 once illegality was established, but with a discretion to admit the evidence, placing the onus on the party seeking inclusion (ordinarily the prosecutor) to establish that the public interest of inclusion outweighed the public interest in exclusion.

66    Section 138 is also not confined to criminal proceedings, although that is where it usually arises. The onus imposed on a party seeking to rely upon evidence obtained improperly or in contravention of an Australian law (or as a consequence of such conduct) by s 138 is conceptually similar to the position of Dr Al Muderis who must establish that the discretion in s 126K(2) arising from the weighing exercise is enlivened and should be exercised in his favour, if the privilege is established by those asserting it for any given source.

The evidence and circumstances relied upon by the respondents

67    The respondents’ evidentiary case largely turns on the evidence of Ms Grieve in two affidavits, including documents she produced. Dr Al Muderis’ evidentiary case substantially depends on impugning Ms Grieve’s evidence, although he does rely upon other affidavit evidence as well.

Ms Grieve’s affidavits

68    Ms Grieve, who was the only witness to be cross-examined, provided two affidavits relied upon by the respondents in relation to this application, the first being one affirmed on 28 July 2023 for the substantive trial before Abraham J, and the second affirmed on 6 November 2023 for the specific purpose of responding to Dr Al Muderis’ seeking disclosure of her sources’ identities and building upon the first (July Affidavit and November Affidavit, respectively). The November Affidavit contained more detail regarding the conversations Ms Grieve had with each confidential source, particularly in relation to her conversations with them, about confidentiality, the information provided by each confidential source, their willingness to provide confidentiality and the corroborating sources she relied on in relation to the information provided by those sources.

69    Dr Al Muderis submits that it is “unbelievable” that Ms Grieve would have a better recollection of promises to sources in November 2023 than in her notes or July affidavit. This sort of submission contains an oft-repeated proposition which has apparent logic, but in some circumstances can bear little resemblance to reality. Witnesses do not always record things accurately at the time of an event, not least because the significance of something may not have been appreciated at the time, or because of some misunderstanding at the time something has been said, or even because it is not thought necessary to record something at the time, including because of a belief that it is better not to do so. These comments reflect the human experience, without the benefit of hindsight so often a feature of litigation. Correspondingly, something that has not been written down may be more memorable than something that has been recorded, because of its indispensability to the overall event or circumstances.

70    In the circumstances of this case, I do not accept that Ms Grieve had a poorer recollection of something of such fundamental importance to a journalist, especially an investigative journalist, as whether a source is willing to be named and openly used. I accept that such information would be able to be very briefly communicated and understood, and probably more so than unfamiliar and perhaps unexpected information necessarily recorded on the run.

71    The respondents submit that the two affidavits are explained by the July Affidavit having been prepared for the trial in the substantive proceeding. I accept that the November Affidavit was prepared for the purpose of the present dispute and is tailored to that purpose, and that this explains why there is detail regarding the giving of a promise not to disclose the identity of each confidential source that does not appear in the July Affidavit and the addition of further information obtained from the sources since the July Affidavit. Dr Al Muderis submits that the November Affidavit is problematic and dangerous, including from a credit and reliability perspective, as it was prepared after the proceeding had commenced, includes evidence of Ms Grieve’s conversations with confidential sources confirming the promise in retrospect, and was informed by Dr Al Muderis’ submissions. Dr Al Muderis submits that the primary evidence is the contemporaneous documents, being the notes, text messages and emails.

72    I do not accept that there is anything inherently problematic or dangerous about the November Affidavit, although of course a more contemporaneous record of what took place would probably have been better. Nor do I accept the implicit suggestion that the November Affidavit in some way reflects poorly upon Ms Grieve, or her credit or reliability, or adversely upon the respondents more generally. It is apparent that, perhaps naively, it was not contemplated that the privilege claim would be contested. But whether that is so or not, once the claim was contested, and particular assertions were made about that claim including as to the inadequacy of the foundation for the claim contained in the July Affidavit, it was reasonable for the respondents to endeavour to address this. This sort of thing is routine in ordinary civil litigation, and especially in interlocutory disputes. It may or may not have a bearing on the reliability or weight of the evidence thereby advanced. In this case, I am not satisfied that it has been shown to be any cause for concern, let alone bears the dire consequences that Dr Al Muderis suggests.

Ms Grieve as a witness

73    Disputed credit and credibility findings are required for Ms Grieve as the only witness to give oral evidence in the hearing. It follows that Abraham J was prescient to have this interlocutory dispute heard separately by another judge. As already noted, and as appears to be common ground, Ms Grieve was the key journalist involved in the investigation into Dr Al Muderis that led to the publications sued upon.

74    The parties present starkly contrasting submissions as to how Ms Grieve’s affidavit evidence and cross-examination in this separate interlocutory proceeding should be regarded. Dr Al Muderis submits in revised written submissions furnished after Ms Grieve had concluded her evidence that he does not accept her evidence and that even taken at its highest that evidence does not establish the factual basis for the existence of the journalist privilege created by s 126K(1) of the Evidence Act. His position is that Ms Grieve is not a witness of credit, and went close to asserting that she had given false evidence, while also submitting that he did not need to go that far. Aspects of her testimony are characterised by him as unbelievable, making no sense, internally inconsistent in parts, bizarre and other colourful descriptors. Many of those labels were little more than pejorative assertions, appealing to a partisan characterisation of the circumstances of events. Dr Al Muderis also submitted that none of Ms Grieve’s evidence in chief should be accepted unless it was corroborated by contemporaneous documentary evidence or was against interest. That stance requires at the very least a conclusion as to such a high degree of unreliability that nothing at all of what Ms Grieve said can be taken at face value, irrespective of its independent probative force.

75    The respondents characterise Dr Al Muderis’ stance as being entirely without merit, describing Ms Grieve as an honest and forthright witness across some five hours of cross-examination. The contrast could not be more stark in the opposing positions.

76    I read Ms Grieve’s two affidavits prior to her cross-examination with some care, albeit that time did not permit much contemplation, and did so again more closely as her cross-examination progressed and after it had concluded. I watched and listened to her giving evidence, observing not just what she said, but how she said it, having regard to the logic and sequence of the events. The ultimate assessment of credit is often not safely done by demeanour alone: see Fox v Percy [2003] HCA 22; 214 CLR 118 at [30]-[31]. That said, there was nothing about the way that Ms Grieve gave evidence that caused me concern about her honesty or, to any significant extent, her reliability. But the greater focus is on content, context and logic. Dr Al Muderis’ pejorative characterisations were overblown, especially when logic and reason are applied, not just appearance.

77    I consider Ms Grieve to be shown, not just by what she said and how she said it, but by the description of what she did and the application of logic, reason and context, to be an earnest, intelligent and conscientious person, relatively new to investigative journalism, but anxiously doing her best, both as a journalist and as a witness. I formed the strong impression of her doing her best to tell the truth, extending to the whole truth to the extent that maintenance of the claim of journalist privilege permitted it, and that her evidence was not inherently incredible, implausible or unreliable. She is undoubtedly worried about being forced to disclose the identity of sources whom she genuinely regards as requiring her not to do so. Her evidence was not flawless; but in my experience few witnesses are flawless when giving evidence of detail and complexity, especially when recalling dealings with numerous other people. She struck me as somewhat taken aback by the process and by the vigour of the cross-examination, but not as being overwhelmed by it. Overall, I consider she withstood the cross-examination well; indeed better than many seasoned witnesses I have observed over many years.

78    Ms Grieve’s affidavit evidence was affected in part by the cross-examination, largely by way of qualification or reservation as to aspects of this, but was not significantly impeached. She made many appropriate concessions and did not argue with counsel, but rather politely disagreed or otherwise held her ground. That was so despite numerous questions being asked to which objection properly could have successfully been taken, but was not. She was largely left to fend for herself in what was obviously a very unfamiliar situation. Ms Grieve coped well with all of this, never once showing anger or irritation, but rather concern to do her best to answer, without failing to protect the identity of the confidential sources. If anything, she was unduly apologetic about some of the answers she clearly felt she had to give. Most of the weaknesses in her evidence were there to be seen independently of cross-examination and this was not substantially affected by what was put to her. She was at times rattled, rather than shaken. I am amply satisfied that Ms Grieve was a credible and generally reliable witness of truth whose testimony can, with minor qualifications, be safely accepted and relied upon.

79    It follows that I reject Dr Al Muderis’ submission that Ms Grieve was not someone whose evidence could be accepted without documentary corroboration or being evidence against her interest. I generally accept as honest and reliable the account that she gives in her affidavits and in cross-examination of her dealing with the various sources she spoke to. I accept that aspects of what was omitted in her July Affidavit on the topic of giving what she contends was a promise not to disclose a source’s identity, as deposed to in her November Affidavit, was due to oversight, rather than it not having happened at all. It follows that that the narrative of Ms Grieve’s evidence below proceeds upon the basis of acceptance of most of what she says.

80    This mostly leaves for determination what should be made of the evidence that Ms Grieve gives in chief by affidavit and the challenge to it made by cross-examination, having regard to the competing submissions. The first aspect turns on the onus cast upon a journalist, and thus upon Ms Grieve and the respondents, of establishing that the promise required by s 126K(1) was made, in respect of each of the 13 sources asserted to be confidential. If, and only if, that is established, Dr Al Muderis then bears the onus of establishing that the public interest in the disclosure of the identity of such a source (s 126K(1); promise) outweighs the likely adverse effect of that disclosure on that source or on any other person (s 126K(2)(a); likely adverse effect) and the public interest in the communication of facts and opinions to the public by news media, including the ability to access sources of facts (s 126K(2)(b); public interest in non-disclosure). But each side bears an evidentiary onus, Dr Al Muderis as to the chapeau to s 126K(2) and the respondents as to s 126K(2)(a) and (b).

81    The promise issue is evaluative rather than discretionary; either the promise is established or it is not, in respect of each of the 13 individual asserted confidential sources. The likely adverse effect issue has a wide ambit and is not confined to the actual likelihood of an adverse event taking place, but may extend to a fear of such an event taking place: see Madafferi at [118]. The public interest in non-disclosure issue is, in express terms, directed to the broad public interest in the communication of facts and opinions to the public by the news media, and thus in the ability of the news media to access sources of facts, which may be informed by the facts and circumstances of the instant case, but is not confined to what has happened in that case.

82    The issue of whether the public interest in disclosure outweighs both the likely adverse effect and the public interest in non-disclosure is based on an evaluation of the competing considerations and their weight, so is not at large. The existence and degree of such adverse effects and public interest in communication to the public, including the ability to access sources, as particular to this case, is mostly in the evidence adduced by the respondents, although a number of documents were also tendered and admitted into evidence in the course of the cross-examination of Ms Grieve.

83    While Dr Al Muderis bears the overall burden of establishing that the public interest in disclosure of the identity of a source found to be the subject of journalist privilege outweighs the combined effect of any likely adverse effect of that disclosure on that source or on any other person and the public interest in the communication of facts and opinions to the public by news media, including the ability to access sources of facts, as already noted, the evidentiary burden to which that balancing evaluation applies falls on the side that stands to benefit from it. That is, Dr Al Muderis bears an evidentiary burden in establishing the facts and circumstances favouring disclosure, while the respondents bear an evidentiary burden in establishing the facts and circumstances favouring non-disclosure: see Madafferi at [50].

84    It is convenient to consider for each asserted confidential source individually the existence or otherwise of the promise, and, following that determination, either as the next step, or in the alternative even if the promise is not established upon the assumption that conclusion is wrong, the cumulative issues of likely adverse effect and public interest in non-disclosure.

85    Much of the evidence and arguments advanced by Dr Al Muderis are directed to attacking the respondents’ case on both the promise for the purposes of s 126K(1) and the factors in s 126K(2)(a) and (b) against the discretion in s 126K(2).

General aspects of Ms Grieve’s evidence

86    Ms Grieve accepted in cross-examination that there are multiple phrases that journalists might use when discussing arrangements on how information will be used with sources, and stated that what those terms mean is often context dependent. Ms Grieve also agreed in cross-examination that there is a distinction between a source’s name not being used in an article and their name being secret. References to secrecy may therefore be important in conveying that the identity of a source is not to be disclosed.

87    In cross-examination Ms Grieve said that as very few people were prepared to go on the record in the investigation into Dr Al Muderis, she relied on her memory a lot and did not need to record individual promises. She later said in cross-examination that in her initial conversations with sources she was doing research, and did not know at that stage if there was a story and did not know that Dr Al Muderis was perceived to be litigious.

88    Ms Grieve spoke about her general process for taking notes when a source has asked for confidentiality or a discussion is taking place about whether a conversation will be on or off the record. Ms Grieve stated that generally she will not take notes during that part of the conversation because people could hear her typing (being the means by which she generally took notes) and get quite edgy, and so once that component of the conversation is done she will ask if it is okay that she starts taking notes. Ms Grieve said that this was her usual practice with all of the confidential sources. Dr Al Muderis submits that I should reject that explanation. I do not agree. This approach is logical and has an inherent ring of truth to it and I accept Ms Grieve’s evidence on this point.

89    In cross-examination it was suggested to Ms Grieve that for nearly every source mentioned in her affidavits, her evidence is not a faithful record of even the notes she has produced of conversations with sources and that, in preparation of her affidavits, she has gone out of her way to twist what she has been told to be as negative about Dr Al Muderis as possible. Ms Grieve disagreed with this assertion. I do not accept that is a fair characterisation, so accept her stance.

90    In cross-examination Ms Grieve spoke about the approach she took generally to her recent conversations with confidential sources regarding their confidential status and the potential for them to be named in the proceeding. Ms Grieve said that she would tell the confidential source she was in a situation where there had been an application to reveal the identity of her sources, that she had to detail the conversations that she had had with them in her July Affidavit, and so she was wanting to include them in that list of confidential sources and wanted to get an understanding of their memory of the terms of their conversation. Afterwards she would ask if the source would release her from the confidentiality obligation and if they said no she would ask why and ask them to describe any adverse consequences they would suffer. Ms Grieve stated that this was a clarification, as it was clear to her what the terms of the original conversations were and that she had made a promise of confidentiality but that she only formally recorded them as a confidential source after she went back and asked them to relieve her of the confidentiality obligation. The 13 sources the subject of this dispute did not do so, and she then went back to them again after the application for disclosure by Dr Al Muderis was made. Ms Grieve agreed in cross-examination that she did not record the conversations in which she first asked the confidential sources to release her from confidentiality obligations.

91    In cross-examination, Ms Grieve said that in her initial conversations with the confidential sources outlined in her July Affidavit, at the end of most of her conversations she would ask if there was anyone else that source could recommend that she speak to as she was trying to speak to as many people as possible.

92    Dr Al Muderis submits that the large number of confidential sources relied upon, in this case 23, is a significant factor in favour of disclosure, although he only ultimately makes the application in relation to only 13 of these (in part because several have revealed their identity or agreed to that taking place, and also in part because he does not press for the disclosure of the identities of former patients). He submits that the motives, integrity and reliability of these sources can therefore not be fairly tested. That such a large number of sources told Ms Grieve that they held concerns about Dr Al Muderis’ practice, that nothing had been done in the past about him, and that they feared adverse consequences if they provided Ms Grieve with information, and were identified to have done so, may speak to the general perception of Dr Al Muderis as someone who people were not prepared to talk about without assurance of confidentiality. I therefore do not accept that the number of confidential sources alone necessarily elevates the case for the disclosure of their identity and in fact may indicate importance of non-disclosure to the investigation and the public interest it may be seen to advance. Also, Dr Al Muderis’ stance does not pay sufficient heed to the terms and purposes of s 126K; and does not, as required, focus on the impact of non-disclosure in terms of the public interest in that being maintained. Ultimately, what really matters on the disclosure side of the equation is the overall significance of the non-disclosure on the conduct of Dr Al Muderis’ case, not merely as a matter of incremental improvement, but as to overall effectiveness or a fair trial.

93    In relation to CS#1, #2, #4 and #6, Dr Al Muderis criticises Ms Grieve’s refusal to confirm that the identity of those sources were the ones he named as being “obviously” those confidential sources. He submits that Ms Grieve’s refusal to concede these and other points, including where CS#7 worked and that third parties knew the Ms Grieve was speaking to CS#1 as a source, were “self-serving”. I do not accept this characterisation, and instead find that most of Ms Grieve’s answers in cross-examination in relation to this line of questioning, which was seeking to have Ms Grieve accept Dr Al Muderis’ theories about the identity of a confidential source or what a reference in correspondence might mean, were “privilege-serving”, rather than “self-serving”.

94    In relation to a number of the sources, Dr Al Muderis made submissions regarding issues that may exist with Ms Grieve’s reliance on the confidential sources if their identities are those that Dr Al Muderis suspects they are. These include whether certain sources are doctors, whether they have conflicts of interest, and the nature of their expertise, but the detriment occasioned by this was cast in vague and general terms, rather than being anchored in the likely relevant issues at trial. It is therefore difficult to give any evaluative weight to this submission. Further, this submission has a “bootstraps” feel to it. Dr Al Muderis cannot test these things because he does not have confirmation of the identity of the confidential sources, but nor did he make any compelling argument that any particular source must be revealed only upon the basis of his suspicions. This is addressed in greater detail later in these reasons.

95    Dr Al Muderis submits generally that from a credit perspective, Ms Grieve’s affidavit is problematic, as some of her evidence goes to conversations she had with confidential sources after the defamation proceedings had commenced. Dr Al Muderis submits that, having read about the proceedings, sources would in retrospect in recent conversations with Ms Grieve assert that they had never intended their name to be revealed at all, and so that evidence is dangerous as it is obtained after the fact. That submission is premised on the speculative conclusion that there was no genuine conversation in the first place. I do not read Ms Grieve’s November Affidavit in that way, nor her evidence in cross-examination in a way that assists with this submission. Rather, in the absence of any compelling reason not to assess this evidence on its own terms, subject to any meaningful challenge to it in cross-examination, that is the only appropriate course to take. I accept her evidence that these follow up conversations were both to check and confirm what had taken place in the course of the prior communications, especially on the issue of confidentiality as to identity, and also to seek to have each source forego confidentiality (which was apparently successful for some) or identify the concerns held if that was not maintained.

96    Dr Al Muderis submits that the primary evidence should be regarded as Ms Grieve’s notes as they are contemporaneous, and the rest treated with caution as there is an issue with reliability, the November Affidavit being both further in time away from the conversations referred to and being drafted for the purposes of addressing Dr Al Muderis’s submissions. I have accepted that submission as guidance in assessing Ms Grieve’s evidence, but have not been satisfied that there is any sound basis for a concern as to reliability, as found in the preceding section above.

97    I now turn to my assessment of each of the 13 confidential sources as to proof of the promise not to disclose their identity so as to satisfy s 126K(1).

The giving of the promise to confidential sources – s 126K(1)

98    It should be noted that, consistent with Ms Grieve’s affidavit evidence asserting journalist privilege in relation to each confidential source, all the respondents in this matter likewise assert this privilege.

Promise to CS#1

99    On 9 June 2022, Ms Grieve looked up a Sydney-based orthopaedic surgeon on Google, CS#1. Ms Grieve had not heard of CS#1 prior to beginning her investigation. She telephoned his rooms, and subsequently sent an email asking to speak to CS#1 regarding osseointegration surgery. That email shows that Ms Grieve told CS#1’s offices that she was “happy to speak with [CS#1] on or off the record”. In Ms Grieve’s affidavit evidence, she stated that “this meant I was offering to speak on the basis that anything he said to me was strictly off the record which meant that I would not disclose his identity as the source of the information provided and that I would not use information in a way which could reveal him as the source”.

100    Dr Al Muderis submits that Ms Grieve’s November Affidavit makes no sense, as Ms Grieve does not disclose how she came to find CS#1 other than that she did a Google search, and the fact that she came across a person who had treated one of Dr Al Muderis’ osseointegration patients is unusual and something he would wish to test at trial. I do not agree that this makes no sense; and I find the asserted wish to test this at trial of little assistance to the substantive issues in the proceeding that I must give primary attention to.

101    On 9 June 2022, CS#1 replied to Ms Grieve’s initiating email stating that he was “happy to talk off the record about the technical aspects of osseointegration”. On the same day, he called Ms Grieve. Under cross-examination Ms Grieve stated that CS#1 brought up Dr Al Muderis, asking her why she was contacting him if she wanted to know about osseointegration as Dr Al Muderis is the most well-known for that surgery. Ms Grieve in her July Affidavit recalls that CS#1 insisted that their conversations be off the record and confidential, and that he was content to speak with Ms Grieve on that basis alone as he was very nervous about his name coming out. CS#1 said that a friend had been burnt by the media in the past and he was very nervous about speaking about Dr Al Muderis and did not want his name near anything. In oral submissions, Dr Al Muderis submitted that this is not reflected in Ms Grieve’s notes and that it makes no sense that Ms Grieve and CS#1 would email regarding speaking about the technical aspects of osseointegration and then immediately begin speaking about Dr Al Muderis, so that evidence should not be accepted and, to the extent it is accepted, the agreement is that CS#1 be only “off the record” and not a secret source.

102    Ms Grieve agreed in cross-examination that there is nothing in her notes which suggests that the off the record discussion would mean that Ms Grieve would never divulge CS#1’s identity at any point, but disagreed that her affidavit had nothing that would suggest that she had conveyed this, stating that she would only disclose a confidential source with their permission; denying also that she had told other doctors that she had spoken to him.

103    It was put to Ms Grieve in cross-examination that the conversation with CS#1 as recounted was “unnatural”, “didn’t make sense at all”, and it is more likely that she brought up with CS#1 that she was seeking negative information about Dr Al Muderis. Ms Grieve responded that while she did not recall the specific construction of the conversation, she maintained that early in the conversation CS#1 inquired about why she was calling him and then asked for confidentiality. Ms Grieve maintained under cross-examination that while it did strike her as unusual that a source would immediately express concerns about confidentiality at the start of a conversation, she maintained that her sources brought up Dr Al Muderis due to his link to osseointegration. In her cross-examination, it was suggested to Ms Grieve that she was dishonest in a number of ways, including by saying that, at that stage, she was just investigating osseointegration, and in suggesting that her sources brought up Dr Al Muderis independently, rather than Ms Grieve doing so. Ms Grieve rejected assertions that she was dishonest in her characterisation of her research when contacting the sources, stating that as she was merely at the investigation stage and did not yet know if there was a story, or what it would be at that stage. She said she did not bring up Dr Al Muderis herself and was rather having more general conversations, and if the source brought up Dr Al Muderis she would then talk about that. I accept Ms Grieve’s evidence and reject the characterisation of her evidence as dishonest. I also accept Ms Grieve’s account of her initial conversation with CS#1, and accept her evidence that CS#1 brought up Dr Al Muderis himself early in the conversation when querying why Ms Grieve would contact him to discuss osseointegration rather than Dr Al Muderis.

104    In her November Affidavit, Ms Grieve clarified that CS#1 had insisted that the whole discussion be off the record. Ms Grieve said she had responded to this request with “yes, of course”. It was put to Ms Grieve in cross-examination that she had no written record of the words spoken, as quoted in her November Affidavit. Ms Grieve agreed. She stated that she tended not to take notes when discussing confidentiality as people can hear typing and get quite edgy, so it is only later that she asks if it is alright if she starts taking notes, though she did not suggest that specifically occurred in the case of CS#1. It was put to Ms Grieve in cross-examination that she immediately agreed to CS#1’s request, without thinking about whether she should agree to that request or not, which Ms Grieve confirmed, stating that the initial conversation took place in the research rather than publishing phase. At the time of the telephone call Ms Grieve was not interested in naming CS#1 in a story, with her focus instead being on speaking to as many people as possible. Ms Grieve spoke to CS#1 approximately 10 to 15 times for a total of five to 10 hours, but has no physical records of those subsequent conversations. Each conversation with CS#1 commenced with CS#1 saying “this is off the record” and Ms Grieve responding “yes, of course”. While Ms Grieve admits that she does not have an independent memory of each and every one of CS#1’s requests for anonymity because they were extensive, and she did not record these in her notes, she said CS#1’s concerns were so elevated that it was easy to recall the confidentiality promise. I accept this evidence.

105    Ms Grieve, in her November Affidavit, recounts that she took steps to maintain confidentiality regarding CS#1, as it was her understanding that her promise to CS#1 meant she would never be able to divulge his identity in publications or otherwise. If asked, Ms Grieve told other surgeons who inquired as to whether she had spoken to CS#1 that she could neither confirm nor deny that.

106    In cross-examination it was suggested to Ms Grieve that offering to speak to a source off the record is not consistent with the Nine Publishing Editorial Guide or the Media Entertainment and Arts Alliance code of ethics, with which Ms Grieve disagreed. Ms Grieve stated in her July Affidavit that she explained to CS#1 that she was happy to agree that he be treated as a confidential source and their conversations would be off the record, and under cross-examination stated that this promise occurred in the first thirty seconds of the telephone conversation, around the time CS#1 had brought up Dr Al Muderis. I accept Ms Grieve’s evidence that CS#1 asked for confidentiality very early in the conversation. CS#1 also expressed concerns about Dr Al Muderis’ practice, and his perception that previous stories about Dr Al Muderis did not gain traction due to his litigious nature. In this context, it is not implausible that upon mentioning Dr Al Muderis himself, CS#1 saw both an opportunity to speak to a journalist about Dr Al Muderis and a need to ensure his identity would remain confidential if he spoke about Dr Al Muderis.

107    Dr Al Muderis submits that Ms Grieve’s recollection of her first conversation with CS#1 is “inherently implausible”, and that it is difficult to see why CS#1 would insist on talking off the record if he thought they were only going to be discussing the technical aspects of osseointegration, as foreshadowed in Ms Grieve’s pre-telephone call email to CS#1. The problem with Dr Al Muderis’ submissions is that they have no regard to the contemporaneous documentary evidence that is consistent with this position. CS#1’s insistence that this be off the record when only contemplating talking generally about the technical aspects of osseointegration is recorded by CS#1’s email to Ms Grieve’s prior to their first telephone conversation. A submission that something is inherently implausible is difficult to comprehend, let alone accept, when it is abundantly clear that this is precisely what happened. It follows that I reject Dr Al Muderis’ further submission that the Court could not be satisfied that the conversation occurred in the way deposed to by Ms Grieve, and the related submission that Ms Grieve’s insistence that she did not mention Dr Al Muderis at the outset of the conversations with the sources makes her evidence about each of the conversations with the confidential sources “fantastical on any view and, to put it more mildly, illogical bordering on absurd”. To be blunt, that characterisation better applies to the submission than to the evidence.

108    Ms Grieve spoke to CS#1 again on 23 October 2023 and asked him to confirm his understanding of the nature of her promise to him. In cross-examination, Ms Grieve agreed with the proposition that she opened by telling CS#1 that she needed information to help keep his identity confidential, and that she asked CS#1 to set out possible consequences he could think of if he were named. Ms Grieve says CS#1 told her that she could not use his name in any way in connection with the information he provided to her or in connection with her investigation or publications. Ms Grieve asked CS#1 if he would release her from her source obligations in relation to him. CS#1 said that he would not release her, that he wanted to retain confidentiality, and would not have spoken to her without the promise of confidentiality. Ms Grieve confirmed that she would maintain her confidential source obligations to CS#1. I accept this evidence, and reject Dr Al Muderis’ submission to the contrary.

109    Dr Al Muderis submits that on Ms Grieve’s evidence, CS#1 contacted patients to obtain patient consent to provide medical records to Ms Grieve, and this means that the patients in question must have known that their doctor was in contact with Ms Grieve and giving her information. Dr Al Muderis submits that Ms Grieve’s refusal to concede that patients of CS#1 who spoke to Ms Grieve must have known CS#1’s identity as a source is “denying the obvious”. It is abundantly clear to me that these refusals were given by Ms Grieve due to her desire not to engage in conjecture regarding conversations she was not party to, and her desire to maintain her claim of journalist privilege. Dr Al Muderis makes this submission in relation to a number of the sources, and produces a script of how those conversations between confidential sources and patients “must have” supposedly gone, which include the confidential source telling the patient that they have been contacted by Ms Grieve who is a journalist. Dr Al Muderis submits that in those circumstances it is difficult to see how the identity of the confidential source could be confidential from “first principles” (apparently referring to the concept of confidentiality at general law), as the fact that the source was in contact with Ms Grieve and was providing her with information was known to a third party over whom neither Ms Grieve nor the confidential source had any control. Dr Al Muderis submits that there was nothing to stop the third party telling their friends or family that there was a media investigation into Dr Al Muderis and that the source was assisting with it. I do not accept that confidentiality as to identity of a source in the context of an expectation of publication of information is necessarily impugned because of other people knowing about the contact being made, nor that it is impugned in this case. General principles of confidentiality as advanced by Dr Al Muderis’ submissions are of no assistance to the present inquiry. This argument fails to pay heed to the terms of s 126K(1), which refer to a promise flowing from a journalist to a source, not any other communication that has taken place, or might take place in the future.

110    The respondents in their written submissions state that Dr Al Muderis made two submissions in relation to the promise given to CS#1: that the conversation as recalled in Ms Grieve’s affidavit is not reflected by Ms Grieve’s notes, and that the first emails between Ms Grieve and CS#1 suggest only the part of the discussion relating to the technical aspects of osseointegration would be off the record. That second submission was generally made by Dr Al Muderis in regard to Ms Grieve’s evidence, though was no longer so strongly pressed in regards to CS#1 in Dr Al Muderis’ amended written submissions. As previously concluded, Ms Grieve came across as a reliable and earnest witness, and I accept her affidavit and oral evidence without the need for corroboration from contemporaneous documentary evidence. The respondents submit that Ms Grieve’s evidence is that she took notes of only information provided by a source as that was relevant to making further enquiries and publication. The email in which CS#1 agrees to speak to Ms Grieve about the technical aspects of osseointegration off the record occurred prior to the initial telephone call and so the respondent submits it cannot be inferred from that email that the only part of the subsequent telephone conversation that was off the record was the part concerning technical aspects of osseointegration as that is unrealistic and makes no sense. The respondents submit that, instead, the email corroborates Ms Grieve’s evidence that when she and CS#1 spoke by telephone, CS#1 insisted that their discussion be off the record. I generally accept these submissions.

111    After weighing the totality of the evidence as to Ms Grieve’s communications with CS#1, and the competing submissions, I accept Ms Grieve’s evidence that CS#1 raised confidentiality early in the conversation, and that she gave him an assurance in that regard which was in substance a promise not to disclose his identity. That is, I find that Ms Grieve gave a promise to CS#1 in the nature of that contemplated by s 126K(1).

Promise to CS#2

112    On about 9 June 2022, Ms Grieve contacted a plastic surgeon, being CS#2, whom she became aware of as he had given a medico-legal opinion in a case involving Dr Al Muderis. She conducted an internet search in order to contact CS#2. She contacted CS#2 via LinkedIn, though there is no documentary evidence of these LinkedIn messages. Ms Grieve stated in affidavit evidence that this is due to her LinkedIn paid subscription lapsing, the messages being deleted at the point of lapsing, and that messages prior to 25 November 2022 being unrecoverable on the resumption of that paid subscription. Ms Grieve confirmed in cross-examination that she has not asked CS#2 for these messages. Dr Al Muderis submits that the fact that Ms Grieve has lost those LinkedIn messages is relevant as, if the identity of CS#2 were revealed, he could seek the messages from the source himself. In cross-examination, Ms Grieve agreed that her initial approach to CS#2 would have been similar to how she approached CS#1, as at that stage they were “all pretty broad requests to speak”.

113    On about 9 June 2022, CS#2 telephoned Ms Grieve from a private number. Ms Grieve recorded that conversation, and then transcribed the conversation into written notes from that recording before deleting it. Those notes do not record that CS#2 sought assurances that the conversation would be confidential and off the record, which Ms Grieve said it would be, as recalled in her July Affidavit. CS#2 informed Ms Grieve that he did not want to be named in any publication or quoted in any way, to which Ms Grieve said words to the effect of “yes, that’s fine”. Ms Grieve in cross-examination stated that she agreed immediately to the request for confidentiality as this was in the research, rather than publishing, phase. Ms Grieve stated under cross-examination that she has no written record of the promise of confidentiality recounted in her July Affidavit, as she did not see that as something relevant to transcribe. She rejected the proposition that the reason the promise was not recorded in her transcription is because it did not occur. Ms Grieve’s evidence is that she considered that it was not necessary to record promises of confidentiality as at that stage all conversations were being treated as off the record, and so her notes of conversations are not comprehensive records and on occasions no notes at all were taken as Ms Grieve could rely on her memory.