Roberts-Smith v Fairfax Media Publications Pty Limited (No 29)

• Jurisdiction: Australia Federal only
• Judgment Date: 11 March 2022
• Neutral Citation: [2022] FCA 218
• Date: 11 March 2022
• Court: Federal Court

Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 29) [2022] FCA 218

File numbers:	NSD 1485 of 2018NSD 1486 of 2018NSD 1487 of 2018
Judgment of:	ABRAHAM J
Date of judgment:	11 March 2022
Catchwords:	PRACTICE AND PROCEDURE – application for orders requiring the production of certain documents and for leave to inspect, uplift and copy those documents – legal professional privilege – waiver – issue waiver – whether the conduct of the respondents is inconsistent with the maintenance of privilege – privilege not waived over any associated material – application dismissed
Legislation:	Evidence Act 1995 (Cth) ss 128, 133
Cases cited:	Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 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 Gartner v Carter [2004] FCA 258 Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 Legal Services Commission v JHW [2012] SASCFC 47; (2012) 223 A Crim R 534 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 23) [2021] FCA 1460 Roberts-Smith v Fairfax Media Publications Pty Limited (No 25) [2021] FCA 1558 Southern Equities Corporation Ltd (In liq) v Arthur Anderson & Co (1997) 70 SASR 166 TerraCom Ltd v Australian Securities and Investments Commission [2022] FCA 208 Verde Terra Pty Ltd v Central Coast Council (No 2) [2020] NSWLEC 10
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	53
Date of hearing:	4 March 2022
Counsel for the Applicant:	Mr B McClintock SC with Mr M Richardson SC and Mr P Sharp
Solicitor for the Applicant:	Mark O’Brien Legal
Counsel for the Respondents:	Mr N Owens SC
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:	11 MARCH 2022

THE COURT ORDERS THAT:

1. The applicant’s interlocutory application, dated 2 March 2022, is dismissed.

2. The applicant is to pay the respondents’ 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. 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 substantive hearing is currently occurring before Besanko J, with the respondents presenting their case.

2. The applicant served a notice to produce on the respondents on 1 March 2022, seeking:

1. One copy of all documents evidencing and/or recording communications between the Respondents' legal representatives and Person 4's legal representatives to the effect that if Person 4 agreed to willingly give evidence at the trial in relation to Darwan, the Respondents would adopt the forensic positions under s128 of the Evidence Act 1995 (Cth) in respect of his evidence as set out in the letter from Minter Ellison to Bennett+Co dated 7 February 2022 (the Forensic Position).

2. One copy of all documents evidencing and/or recording communications between the Respondents' legal representatives and Person 4's legal representatives which evidence and/or record any negotiations which resulted in and/or led to the Forensic Position as set out in the said Minter Ellison letter.

3. One copy of any file note of discussions between the Respondents' legal representatives and Person 4's legal representatives which evidence and/or record any negotiations which resulted in and/or led to the Forensic Position as set out in the said Minter Ellison letter.

4. One copy of all documents evidencing and/or recording any legal advice (and any document referred to therein) given to the Respondents by any of their legal representatives concerning and/or referring to the Forensic Position.

5. One copy of any document evidencing or recording any legal advice (and any document referred to therein) given to the Respondents by any of their legal representatives concerning and/or referring to the Forensic Position.

6. One copy of any document evidencing or recording any instructions given by the Respondents to their legal representatives to ascertain if Person 4 would agree to willingly give evidence in these proceedings about the Darwan mission.

3. On 2 March 2022, the respondents served on the applicant an objection schedule claiming legal professional privilege over 10 documents (including attachments). The applicant seeks production to the Court and inspection of those 10 documents and attachments. Each of the documents are said to respond to category 2 of the notice to produce.

4. On that same day, the respondents produced to the Court a letter, dated 7 February 2022, from the respondents’ solicitors (MinterEllison) to those acting for Person 4, a witness in the proceedings (the 7 February 2022 letter), which had been the subject of an earlier notice to produce. The significance of this letter to this application is made clear below.

Material relied on

5. The applicant read an affidavit of Monica Helen Allen, one of his solicitors, sworn 2 March 2022, which annexes the notice to produce and objection schedule.

6. The respondents read the affidavit of their solicitor, Peter Llewellyn Bartlett, sworn 3 March 2022. Mr Bartlett, inter alia, claimed legal professional privilege over the 10 documents and the attachments thereto, which are listed in the objection schedule, on the basis that the documents are confidential communications made by the respondents’ legal representatives for the dominant purpose of the respondents obtaining evidence for use in these proceedings. Mr Bartlett deposed that the circumstances of those communications were as follows:

1. they were engaged in for the sole purpose of communicating with Person 4's legal representatives about...