Roberts-Smith v Fairfax Media Publications Pty Limited (No 32)

• Jurisdiction: Australia Federal only
• Judgment Date: 22 April 2022
• Neutral Citation: [2022] FCA 419
• Date: 22 April 2022
• Court: Federal Court

Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 32) [2022] FCA 419

File numbers:	NSD 1485 of 2018NSD 1486 of 2018NSD 1487 of 2018
Judgment of:	ABRAHAM J
Date of judgment:	22 April 2022
Catchwords:	PRACTICE AND PROCEDURE – application to produce and for leave to inspect, uplift and copy documents – legal professional privilege – whether the documents are not protected by privilege because they were made in the furtherance of a fraud – where the respondents allege certain witnesses to be called by the applicant colluded in respect to aspects of their evidence to be given at trial – whether the respondents have relied on admissible evidence capable of establishing a prima facie case of fraud – consideration of the status of outlines of evidence in defamation proceedings – where outlines of evidence found to be inadmissible in relation to this application – application dismissed
Legislation:	National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) s 38B
Cases cited:	Attorney-General (Northern Territory) v Kearney [1985] HCA 60; (1985) 158 CLR 500 AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 Carter v Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121 Commissioner of the Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 Kang v Kwan [2001] NSWSC 698 Kuwait Airways Corporation v Iraqi Airways Company (No 6) [2005] EWCA Civ 286; [2005] 1 WLR 2734 R (Hallinan Blackburn Gittings & Nott (a firm) v Crown Court at Middlesex Guildhall [2004] EWHC 2726; [2005] 1 WLR 766 R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 Roberts Smith v Fairfax Media Publications Pty Limited (No 12) [2021] FCA 465 Roberts-Smith v Fairfax Media Publications Pty Limited (No 15) [2021] FCA 1461 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 Roberts-Smith v Fairfax Media Publications Pty Limited (No 33) [2022] FCA 420 Southern Equities Corporation Ltd (in liq) v Arthur Anderson & Co (1997) 70 SASR 166
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	69
Date of hearing:	8 April 2022
Counsel for the Applicant:	Mr A Moses SC and Mr P Sharp
Solicitor for the Applicant:	Mark O’Brien Legal
Counsel for the Respondents:	Mr N Owens SC and Mr C Mitchell
Solicitor for the Respondents:	MinterEllison
Counsel for the Commonwealth:	Mr J Edwards
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:	22 April 2022

THE COURT ORDERS THAT:

1. The respondents’ interlocutory application dated 25 March 2022 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. 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, which commenced on 7 June 2021, is currently proceeding before Besanko J, with the respondents having recently closed their case. The applicant’s case in reply has recently commenced.

2. On 14 March 2022, the respondents issued the applicant a notice to produce in the following terms:

1. All documents referring to, evidencing or relating to any communication between:

a. Person 27 and any other person(s) (including but not limited to the Applicant and/or any lawyer(s) or other person(s) acting on behalf of the Applicant); and/or

b. the Applicant and any other person(s) (including but not limited to any lawyer(s) or person(s) acting on behalf of the Applicant),

which refers to or relates to the information set out in paragraph [30] of the Outline of Evidence of Person 27 filed on or about 12 July 2019 (namely, “I recall that early in our deployment, in about late July/early August 2012, the Commander of the NDS, Person 12, was removed from participating in missions with the SASR after he shoot at a dog and the bullet ricocheted hitting another Patrol Commander in the leg”), including but not limited to any communication relating to the Outline of Evidence of Person 27 filed on or about 12 July 2019 or any draft outline of evidence of Person 27.

2. All documents referring to, evidencing or relating to any communication between:

a. Person 32 and any other person(s) (including but not limited to the Applicant and/or any lawyer(s) or other person(s) acting on behalf of the Applicant); and/or

b. the Applicant and any other person(s) (including but not limited to any lawyer(s) acting on behalf of the Applicant),

which refers to or relates to the information set out in paragraphs [19], [26(a)] (second sentence) and/or [26(b)] of the Outline of Evidence of Person 32 filed on or about 12 July 2019 (namely, “I recall that early on in our deployment, I believe around the end of July 2012, Person 12 was stood down as Commander of the NDS soldiers following an incident during a mission in which an Australian Patrol Commander was hit by shrapnel from a bullet fired by Person 12”), including but not limited to any communication relating to the Outline of Evidence of Person 32 filed on or about 12 July 2019 or any draft outline of evidence of Person 32.

3. All documents referring to, evidencing or relating to any communication between:

a. Person 35 and any other person(s) (including but not limited to the Applicant and/or any lawyer(s) or other person(s) acting on behalf of the Applicant); and/or

b. the Applicant and any other person(s) (including but not limited to any lawyer(s) acting on behalf of the Applicant),

which refers to or relates to the information set out in paragraphs [49], [50] and/or [51] of the Outline of Evidence of Person 35 filed on or about 12 July 2019 (namely, “…I was about 4-5 metres away from Person 12 when I saw that he was preparing...