Groth v Herald & Weekly Times (VID 1130/2025) First directions hearing. Orders made for interlocutory hearing on 6 November 2025

November 1, 2025 |

At the first directions hearing on 30 October 2025 in the Federal Court proceeding of SAM GROTH and another v THE HERALD AND WEEKLY TIMES PTY LTD and others the Respondent succeeded to have an application to determine whether the journalist exemption applies. The hearing will occur on 6 November 2025. The directions hearing is reported by the Guardian in News Corp had no first-hand source suggesting Sam Groth’s wife underage at start of relationship, MP’s lawyer tells court, the AFR with News Corp allegedly claimed to be writing puff piece on Groths, and 9 News with ‘Salacious gossip’ or news? Tennis star turned MP to test new privacy law (to name but 3 stories).

The orders made Justice MceLwaine are:

  1. The interlocutory application of the respondent accepted for filing on 2 October 2025 is set down for hearing at 30am on 6 November 2025.
  2. Any evidence proposed to be relied upon by the respondent at the hearing of the interlocutory application is to be in the form of an affidavit which is to be filed and served by 4pm on 4 Novemebr 2025.
  3. Any evidence proposed to be relied upon by the applicant at the hearing of the interlocutory application is to be in the form of an affidavit which is to be filed and served by 12pm on 5 November 2025.
  4. The matter be set down for hearing in Melbourne at 15am on 11 May 2026, with an estimate of 10 days.
  5. The parties are to attend a mediation to be organised by the parties, such mediation to take place on 7 November 2025.

The Guardian article provides:

Australia’s new privacy laws to be tested as Victorian Liberal MP and wife Brittany Groth sue over Herald Sun articles

A News Corp journalist had “not one piece of information” to suggest the deputy Victorian Liberal leader, Sam Groth, began a relationship with his wife when she was underage, the MP’s lawyers have told a court.

In what a federal court judge described as a “test case” for Australia’s new privacy laws, Groth and his wife, Brittany, are suing the Herald and Weekly Times (HWT), reporter Stephen Drill and the Herald Sun’s editor, Sam Weir, over a series of articles published in July.

The articles allege the couple met at a tennis club in suburban Melbourne and began a sexual relationship when Brittany was 16 or 17 and Sam – then a professional player – was 23 or 24 and working as her coach, the court has been told.

Brittany Groth is suing over an alleged serious invasion of privacy, while her husband has alleged he was defamed by the articles.

HWT is defending the reporting on public interest grounds, arguing the allegations could “constitute a criminal offence” and therefore be “weaponised” by Groth’s political opponents ahead of the 2026 Victorian state election.

The tabloid is also arguing it is exempt from new privacy laws – which allow for damages of up to $478,000 – due to the exemption provided for journalists.

But during a case management hearing in Melbourne on Thursday, the Groths’ barrister, Sue Chrysanthou SC, argued the exemption did not apply.

“The defence has two elements. First you have to be a journalist or the employer of a journalist, and then it also has to be journalistic material,” Chrysanthou told the court.

She said the laws, which were part of a pre-election rush of bills late last year, were written in such as way as “clearly parliament thought that not all publications that purport to be news are news”.

“We say that a proper assessment of that requires an understanding of all the information that the journalist had when they made the decision and did in fact publish this allegation,” Chrysanthou said.

She told the court she would seek to cross-examine Drill during the trial, and use discovery to access to “all of the information” he had at the time of publication.

“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,” Chrysanthou told the court.

“And [they lacked] 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.”

HWT’s lawyer, Matthew Collins KC, argued the articles were clearly news, noting they appeared on the front page of Victoria’s highest-circulation newspaper and concerned “the person who aspires to be the deputy premier of the state”.

Judge Shaun McElwaine, however, noted courts in the US had “grappled for years with the tort of privacy and the first amendment”.

“There are limits to what is news and what is salacious gossip,” he said.

Collins is seeking a hearing to determine whether the journalistic exemption applies, while Chrysanthou wants that question heard concurrently with the trial.

A separate hearing on the issue has been set for 6 November.

McElwaine noted that, as the “test case” and “first of its kind” brought under the new privacy laws, it was “inevitable” any ruling he made would be appealed, potentially prolonging proceedings.

He also set a two-week trial for May 2026.

The AFR article provides:

A News Corp journalist allegedly told a tennis coach he was planning a “puff piece” when investigating whether former professional player and deputy Victorian Liberal leader Sam Groth began his relationship with his wife when she was underage.

Groth and his now-wife Brittany are suing Herald Sun publisher The Herald and Weekly Times; journalist Stephen Drill; and editor Sam Weir after the publication of a story in July suggesting their relationship began when Brittany was under 18.

In a reply document filed by the Groths in the Federal Court, they alleged journalist Stephen Drill called a tennis coach by the name of David Close on June 18, 2025 and “misled him to believe that he was doing a puff piece on Sam and Brittany, ‘one of the power couples of Melbourne’.”

The Herald Sun story allegedly insinuated the pair began their sexual relationship when Brittany was under 18 and Sam, as her tennis “hitting partner”, aged 23 or 24, had a duty of care.

Close allegedly told Drill he did not coach at the Templestowe club where Sam Groth worked before returning to professional tennis.

“Sam and Brittany did not start dating until after he returned to professional tennis and was not working at Templestowe, information that was easily ascertainable,” the Groths’ documents claim.

New privacy provisions

The proceedings are expected to serve as a test case of Australia’s new privacy protection laws, which allow a person to take action if they believe their privacy has been invaded, and that invasion was intentional or reckless.

The Herald Sun has indicated it will rely on the journalism exemption to the privacy laws, stating “there were legitimate questions as to the appropriateness of the circumstances in which Sam commenced a romantic relationship with Brittany, including whether the circumstances were consistent with contemporary standards of conduct and social norms”.

The Groths claim they were never approached for comment on the allegations and that information regarding Brittany’s “sex life as a teenager and her alleged status as a victim of a sexual offence, was inherently private, is contumelious conduct warranting an award of exemplary damages in Brittany’s favour,” their reply to the Herald Sun’s defence said.

“The non-consensual identification of an alleged child victim of a crime, or any alleged victim of a sexual offence could never be considered to ‘have the character of news or current affairs’.”

The Herald Sun, in its defence, said it sent questions to the media and communications office of the Victorian Liberal Party, seeking a response from Sam Groth and the party.

The paper said this was standard protocol for Victorian state political reporting when questions touched upon matters relevant to the leadership of the party. They also said Drill had been proactively contacted by the party when undertaking his investigation.

“The subject of the respondents’ investigation was Sam, not Brittany, and there was to be no suggestion in the Articles of any wrongdoing on Brittany’s part,” the defence said.

The 9 News article provides:

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”.
Brittany Groth today called a previous report by the Herald Sun “a disgraceful smear campaign”, after it questioned whether she was underage when she commenced a relationship with Mr Groth in 2011. (Nine)
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.
“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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