03/02/2020 Slater v Blomfield [2014] NZHC 2221; [2014] 3 NZLR 835 (12 September 2014) document and to other discretionary matters, the witness should not be compelled to breach. [22] In the High Court Rules the predecessor to r 8.46 provided specific protection in defamation cases to disclosing sources in response to interrogatories where the defence of fair comment on a matter of public interest was raised. This protection was justified on the basis of the irrelevance of the source of the information.9 [23] In 1999 the Law Commission published a report leading up to the enactment of the Evidence Act. In its report, the Law Commission proposed a draft clause that 5. Broadcasting Corporation of New Zealand v Alex Harvey Industries Ltd [1980] 1 NZLR 163 (CA). 6 Attorney-General v Clough [1963] 1 QB 773 (CA) at 792; British Steel Corporation v Granada Television Ltd [1981] AC 1096 (HL) at 1169. 7 Broadcasting Corporation of New Zealand v Alex Harvey Industries Ltd, above n 5, at 171. is the same as s 68 of the Evidence Act. The Law Commission explained that:10 The protection of journalists’ confidential sources of information is justified by the need to promote the free flow of information, a vital component of any democracy. [24] Reference was made to creating an express protection for the identity of a source, which places the onus on the person seeking to have the source revealed. [25] Section 35 of the Evidence Amendment Act (No 2) 1980 was repealed by the Evidence Act 2006. The predecessor to r 8.46 in the High Court Rules was not changed. There was no reference in s 68 or elsewhere in the Evidence Act to the newspaper rule. [26] The newspaper rule had been considered and applied by the Court of Appeal in Broadcasting Corporation of New Zealand v Alex Harvey Industries Ltd. The rule was that in a defamation claim against a newspaper an order would not be made by which the plaintiff might obtain discovery of the name of the person who had supplied to the newspaper the information complained of by the plaintiff. The rationale of the rule was variously stated as being that the source of the information was irrelevant,11 and the public interest and the benefit for society in having discussion and evaluation of affairs that is informed.12 [27] The newspaper rule was regarded as applying except in an “exceptional circumstance”.13 There was no exact weighing process involved in determining whether it applied of the type in s 68(2), although the considerations referred to in the cases on the rules had similarities to those outlined in s 68(2). [28] In its 1994 paper Evidence Law: Privilege,14 the Law Commission commented on the various means by which a Court could protect journalists’ sources www.nzlii.org/nz/cases/NZHC/2014/2221.html 6/30