Roberts-Smith v Fairfax Media Publications Pty Limited (No 25)

• Jurisdiction: Australia Federal only
• Judgment Date: 14 December 2021
• Neutral Citation: [2021] FCA 1558
• Court: Federal Court
• Date: 14 December 2021

Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 25) [2021] FCA 1558

File numbers:	NSD 1485 of 2018NSD 1486 of 2018NSD 1487 of 2018
Judgment of:	ABRAHAM J
Date of judgment:	14 December 2021
Catchwords:	PRACTICE AND PROCEDURE – application for leave to inspect, uplift and copy documents – legal professional privilege – whether privilege has been waived – whether conduct of respondents is consistent with the maintenance of the privilege – where documents sought are relevant to the respondents’ application for leave to issue a subpoena to a witness to give evidence – privilege waived – leave granted
Cases cited:	Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) [2011] FCA 1057; (2011) 283 ALR 299 AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 Council of the New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236 DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499 Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 180 FCR 543 Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 Roberts-Smith v Fairfax Media Publications Pty Limited (No 12) [2021] FCA 465 Roberts-Smith v Fairfax Media Publications Pty Limited (No 23) [2021] FCA 1460
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	75
Date of hearing:	29 November 2021
Counsel for the Applicant:	Mr A Moses SC with Mr P Sharp
Solicitor for the Applicant:	Mark O’Brien Legal
Counsel for the Respondents:	Mr N Owens SC with Ms L Barnett and Mr C Mitchell
Solicitor for the Respondents:	MinterEllison
Counsel for the Commonwealth:	Ms C Ernst
Solicitor for the Commonwealth:	Australian Government Solicitor

ORDERS

		NSD 1485 of 2018
BETWEEN:	BEN ROBERTS-SMITH Applicant
AND:	FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720) (and others named in the Schedule) First Respondent

		NSD 1486 of 2018
BETWEEN:	BEN ROBERTS-SMITH Applicant
AND:	THE AGE COMPANY PTY LIMITED (ACN 004 262 702) (and others named in the Schedule) First Respondent

		NSD 1487 of 2018
BETWEEN:	BEN ROBERTS-SMITH Applicant
AND:	THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED (ACN 008 394 063) (and others named in the Schedule) First Respondent

order made by:	Abraham J
DATE OF ORDER:	14 December 2021

THE COURT ORDERS THAT:

1. The respondents are to produce to the Court, Documents 1, 2, 3 and 17 in the respondents’ First Objection Schedule, responsive to the Notice to Produce issued by the applicant on 5 November 2021.

2. The applicant is granted leave to inspect, uplift and copy the following documents:

   1. Documents 1, 2, 3 and 17 (in unredacted form) in the respondents’ First Objection Schedule; and

   2. Document 12 (in unredacted form) in the respondents’ Third Objection Schedule (being in response to the subpoena issued to Person 56).

3. The respondents are to pay the applicant’s costs of this application, to be agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1. Mr Ben Roberts‑Smith VC MG is a former soldier who was deployed on multiple occasions to Afghanistan. In August 2018, Mr Roberts‑Smith commenced proceedings in this Court seeking damages for alleged defamatory publications by Fairfax Media Publications Pty Ltd, The Age Company Pty Ltd, The Federal Capital Press of Australia Pty Ltd and certain journalists. The publications are alleged to have carried a number of imputations concerning the conduct of Mr Roberts‑Smith whilst serving in Afghanistan. The alleged imputations include that Mr Roberts‑Smith broke the moral and legal rules of military engagement and that he is therefore a criminal. By their defence, the respondents claim to be able to justify the imputations, a matter on which they bear the onus of proof. The substantive hearing commenced on 7 June 2021, and the applicant’s case in chief has closed. The hearing has been adjourned as a result of difficulties which have arisen as a consequence of Covid-19 restrictions.

2. The applicant served a notice to produce on the respondents on 5 November 2021 and 11 November 2021 respectively, following the filing by the respondents on 28 October 2021 of an application for leave to issue a subpoena to Person 56, a potential witness, to give evidence at the hearing. That application is yet to be heard.

3. On 10 November 2021, in response to the 5 November notice, the respondents served on the applicant an objection schedule claiming legal professional privilege and relevant documents comprising, two emails and an email chain between their solicitors and counsel acting for Person 56. On 12 November 2021, the respondents served an updated objection schedule (First Objection Schedule).

4. On 15 November 2021, the respondents served an objection schedule on the applicant in response to the 11 November notice (Second Objection Schedule).

5. The applicant also issued a subpoena to Person 56 dated 11 November 2021, to which documents have been produced. One of those documents included is an email from Sean Richter (the legal representative for Person 56) to Anthony Reilly, of the Department of Defence, dated 5 August 2021. The respondents were given first access to the documents. As a result, the respondents make a claim for legal professional privilege over part of that email, as reflected in their objection schedule served on 24 November 2021 (Third Objection Schedule). To date, the 5 August email has only been produced to the applicant in a redacted form. The applicant seeks an unredacted copy of that document.

6. On 15 November 2021, the applicant filed an interlocutory application seeking access to certain documents over which the respondents claim are privileged.

7. The applicant seeks access orders to the following documents:

1. documents which are responsive to categories 1, 2 and 3 of the 5 November notice, as identified in the First Objection Schedule, and over which legal professional privilege is claimed (identified as Documents 1 and 2 in the First Objection Schedule);

2. an unredacted copy of an email between Dean Levitan, a solicitor for the respondents, and Mr Richter dated 1 September 2021...