Roberts-Smith v Fairfax Media Publications Pty Limited (No 23)

• Jurisdiction: Australia Federal only
• Judgment Date: 23 November 2021
• Neutral Citation: [2021] FCA 1460
• Court: Federal Court
• Date: 23 November 2021

Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 23) [2021] FCA 1460

File numbers:	NSD 1485 of 2018NSD 1486 of 2018NSD 1487 of 2018
Judgment of:	ABRAHAM J
Date of judgment:	23 November 2021
Catchwords:	PRACTICE AND PROCEDURE – subpoena – application to inspect and uplift documents – legal professional privilege – whether legal professional privilege attaches to documents – whether documents were prepared for the dominant purpose of obtaining legal advice or anticipated litigation – whether common interest privilege exists – whether privilege has been waived – claim of privilege upheld
Legislation:	Evidence Act 1995 (Cth) Evidence Act 1995 (NSW)
Cases cited:	Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) [2011] FCA 1057; (2011) 283 ALR 299 Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796 AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382 Balabel v Air India [1988] Ch 317 BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181 Commissioner of Taxation v Pratt Holdings Pty Ltd [2003] FCA 6; (2003) 195 ALR 717 Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247 Cygnett Pty Ltd v Souris [2020] FCA 1754 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 DBCT Management Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd and Geosea Australia Pty Ltd Joint Venture [2021] FCA 512 District Council of Mallala v Livestock Markets Ltd [2006] SASC 80; (2006) 94 SASR 258 DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191; (2003) 135 FCR 151 Ensham Resources Pty Ltd v AIOI Insurance Company Ltd [2012] FCAFC 191; (2012) 209 FCR 1 Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] NSWSC 259; (1996) 39 NSWLR 601 Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404 Grant v Downs [1976] HCA 73; (1976) 135 CLR 674 Hamilton v New South Wales [2016] NSWSC 1213 Hancock v Rinehart (Privilege) [2016] NSWSC 12 Hartogen Energy Ltd (in liq) v Australian Gas Light Co [1992] FCA 322; (1992) 36 FCR 557 Inlon Pty Ltd v Celli SpA [2017] NSWSC 569 Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 Media Ocean Ltd v Optus Mobile Pty Ltd (No 10) [2010] FCA 1348 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332 Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 Patrick v Capital Finance Corporation (Australasia) Pty Ltd [2004] FCA 1249; (2004) 211 ALR 272 Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 Re Southland Coal Pty Ltd (rec & mgrs apptd) (in liq) [2006] NSWCA 899 Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2006] NSWSC 234 Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380 Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48; [2005] 1 AC 610 Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 Westminster Airways Ltd v Kuwait Oil Co Ltd [1951] 1 KB 134 Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	131
Date of hearing:	18 October 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 A Mitchelmore SC
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:	23 November 2021

THE COURT ORDERS THAT:

1. The respondents’ interlocutory application, dated 20 August 2021, is dismissed.

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 (Fairfax), 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. On 5 March 2020, at the respondents’ request, the Court sealed a subpoena addressed to Cato & Clive Partners Pty Ltd (Cato & Clive), a public relations firm...