Victorian Liberal deputy leader Sam Groth is suing the Herald Sun over a series of stories in late July questioning when he began his relationship with his now-wife Brittany.
Stories about the origin of a tennis ace-turned-politician's relationship with his wife will be a "test case" of Australia's privacy exemption for media.
Victorian Liberal deputy leader Sam Groth is suing the Herald Sun over a series of stories in late July questioning when he began his relationship with his now-wife Brittany.
The three News Corp stories remain up online, including the original article penned by journalist Stephen Drill titled "How Liberal Party is courting controversy with Sam Groth".
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The Groths allege the articles were defamatory and breached Ms Groth's privacy under federal tort laws that came into effect in June.
Professional journalists and media publishers are exempt when collecting information for preparation to publish or publication of material that has the "character of news, current affairs or documentary".
In a Federal Court hearing today, the Groths' barrister Sue Chrysanthou SC argued the stories were not news but "salacious gossip".
"We wish to cross-examine the journalist," she said.
"In particular, we want discovery of all of the information that the journalist had at time of publication to demonstrate that they had not one piece of information from any person who had any first-hand information about the circumstances of my client's relationship when they met.
"And any basis whatsoever, or any first-hand basis, to allege that there was reasonable suggestion that my client Mr Groth was engaging in a crime when he first started his relationship with his now-wife and mother of his two young children."
It was not sufficient to just look at the evidence of the articles as federal parliament included the element that the content be "journalistic material", she argued.
"Clearly, parliament thought that not all publications that purport to be news are news," Chrysanthou said.
The News Corp outlet's equally high-profile barrister Matt Collins KC is pushing for the exemption question to be put to bed before the case proceeds to trial.
The publications themselves were enough for the court to make a ruling on whether the exemption applied, Collins suggested.
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"We're talking about a front-page article in the highest-selling newspaper in the state about political matters, about the person who aspires to be the deputy premier of the state," Collins said.
"Does that have the character of news ... this is the first time this question has arisen."
Justice Shaun McElwaine noted US courts had grappled for years trying to reconcile the right of privacy with the first amendment, which protects press freedom.
He will rule on whether the privacy exemption aspect of the case can be argued in advance of trial after a hearing on November 6.
If the privacy element was split off, the judge wryly foreshadowed it would be "inevitable" the losing party would appeal the decision and fragment the case.
"I can see what's going to happen," he said laughing.
"This is basically a test case. This is the first time this provision has been considered."
Regardless of his ruling and a mediation hearing on November 7, the trial has been set down to run for 10 days from May 11.
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