A Perth media outlet has been ordered to hand over documents to Troy Buswell’s lawyers after losing a legal fight against a subpoena served as part of the Treasurer’s defamation case against his former partner, Fremantle MP Adele Carles.
The subpoena sought any documents, including handwritten notes, emails, letters, audio recordings, that recorded comments made by Ms Carles to Sunday Times reporter Joe Spagnolo, or any other journalist, which resulted in two articles being published on December 9.
At a hearing in the Supreme Court on Thursday, lawyers for the newspaper argued the subpoena should be set aside because it was a “fishing exercise” which was an abuse of process and had no forensic purpose and was otherwise oppressive.
Handing down his judgment today, Justice John McKechnie substantially dismissed the application by the newspaper.
Justice McKechnie ruled the part of the subpoena which requested documents from “any other journalist” was too wide and should be removed, but the newspaper otherwise had to comply with the subpoena by 4pm on Monday.
Justice McKechnie said the subpoena related directly to Mr Buswell’s claim and rejected an argument it would cause the newspaper to disclose confidential information.
“No question of journalists’ privilege (if such a thing exist) or protection of sources arises,” Justice McKechnie said in the decision.
“The article purports to quote the defendant directly and of course, names her prominently. Confidentiality alone or in combination with other factors is insufficient to set aside the subpoena.”
Mr Buswell launched legal action against Ms Carles nearly three weeks ago. It is alleged that Ms Carles defamed Mr Buswell across a range of media outlets by making comments about his state of mind, drinking and behaviour at the homes of two wealthy Perth businessmen.
One allegation involved Ms Carles claiming that Mr Buswell had simulated sex by “dry-humping” seafood millionaire Nicholas Kailis at the home of property tycoon Nigel Satterley a year ago.
Mr Buswell, who has denied Ms Carles’ version of the incident, is seeking damages and a public apology from Ms Carles
Today, Sunday Times lawyer Jason MacLaurin told the court he would need to take instructions from the newspaper.
Sunday Times Editor Christopher Dore said the newspaper would consider its position on an appeal against the decision over the next few days.
"Given the nature of the public statements made across a range of media outlets after The Sunday Times published our original scoop it is somewhat of a mystery as to why Mr Buswell would seek documents and other unpublished material from us in his defamation case against Ms Carles,” Dore said
"We were of the view that the summons was nothing more than a fishing expedition at such an early stage of the proceedings. As a matter of principle we argued that the summons should be set aside for that reason. This is not a matter of The Sunday Times resisting the subpeona in order to protect confidential sources.”
Outside court, Mr Buswell’s lawyer Martin Bennett said the subpoena had been issued as part of standard forensic procedure and the documents were sought to formulate proper pleadings.
Mr Bennett, who said he could not see any prospect of the defamation case settling at the moment, said he was confident the newspaper would comply with the court order.