One of the most important media law cases of recent decades will be decided tomorrow when Justice Lucy McCallum of the NSW Supreme Court hands finally hands down judgement in the case of businesswoman Helen Liu against The Age.
The case has more odd features than you can poke a stick at — not least that it has taken McCallum almost 12 months to write her judgement since the last hearing date in February 2011.
The case is also a white knuckler for those involved. At stake is the ability of journalists and media organisations to protect their sources — but not only that.
It is theoretically possible that the senior executives of Fairfax Media, including CEO Greg Hywood, Group General Counsel Gail Hambly and the editor of The Age Paul Ramadge might end up on the end of contempt of court action, including jail or heavy fines.
The case concerns the attempt by Chinese Australian businesswoman Helen Liu to determine the sources for reports by The Age investigative team detailing her relationship with federal government minister Joel Fitzgibbon.
Now, to the strange aspects of this case. Liu has issued writs both against The Age, and against the unknown person “John Doe” — the alleged source for the stories. Whether it is possible, in Australian law, to sue an unknown person has not been tested.
Neither the writ to The Age nor that to John Doe have been served, but Liu’s lawyers have made regular appearances to extend them. Their service apparently awaits the resolution of the case before McCallum.
So too a raft of defamation action. This includes four writs issued by Fitzgibbon in the ACT Supreme Court against Fairfax outlets in hard copy and online.
Since this action began, shield laws giving journalists some protection from attempts to discover their sources’ identities have been passed at both Commonwealth level and in NSW — but those laws came too late to be relevant to this case.
Clearly, if the court orders tomorrow that the reporters reveal their sources, the order will not be complied with. An appeal is certain.
But it goes higher than that. In submissions last year, lawyers for Liu seemed to be trying to depersonalise the case, by saying it was The Age as a corporate identity that should reveal the sources, not the reporters individually.
But who is The Age? And what will it mean, given that almost certainly the editor-in-chief, Paul Ramadge, and certainly Hywood and Hambly, do not know the identity of the source?
In any case, they would not reveal the identity even if they knew it, nor would they order the reporters to do so — meaning that in the long term they could end up with contempt convictions, with all that means for entering the USA and the ability to generally conduct oneself.
The consequences for Julia Gillard’s government are also likely to be significant. Given the near certainty that tomorrow’s judgement will be appealed, it is likely that any resulting defamation or contempt trials will eventually take place close to the 2013 federal election.
And it is quite possible that the whole schemozzle will end up before the High Court.
Given all this, perhaps Justice McCallum could be forgiven for taking an extraordinary 12 months. Certainly there will a fair bit of tension when she delivers the judgement, at 10am tomorrow morning.
UPDATE Tues 31st Jan 11am: It seems we spoke too soon when we reported yesterday that after almost 12 months, Justice Lucy McCallum would this morning deliver judgment in the extraordinary and important NSW Supreme Court case in which Chinese Australian businesswoman Helen Liu attempts to identify journalists’ sources.
The lawyers were girding their loins yesterday evening, ready to get the judgment at 10am. Then it was suddenly announced that the judge would instead be attending a ceremony for the Supreme Court Lobby Opening, and judgment would therefore be delayed until Wednesday, at 10.30am.