Federal Court of Australia Roberts-Smith v Fairfax Media Publications Pty Limited (No 9) [2020] FCA 1850 File numbers: NSD 1485 of 2018 NSD 1486 of 2018 NSD 1487 of 2018 Judgment of: BESANKO J Date of judgment: 23 December 2020 Catchwords: PRACTICE AND PROCEDURE — interlocutory application for an order that a party is entitled to redact information in two documents to be produced following discovery — where documents xxxxxxxxxx xxxxxxxxxxxxxxxxxxx contain irrelevant and sensitive information — appropriate case for judge to examine unredacted documents and make a decision as to the relevance of the information without the party seeking the documents being provided with unredacted copies Legislation: xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Defamation Act 2005 (NSW) ss 25, 26 Cases cited: Australian Competition and Consumer Commission v McMahan Services Pty Ltd [2004] FCA 353 Clifford v Vegas Enterprises Pty Ltd (No 2) [2010] FCA 36; (2010) 182 FCR 448 Egglishaw v Australian Crime Commission (No 2) [2009] FCA 12; (2009) 71 ATR 570 Fig Tree Developments Ltd v Australian Property Custodian Holdings Ltd [2008] FCA 1041 MJ Corrosion Consultants Pty Ltd v Gilmour [2011] FCA 1514 Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 23 Date of last submissions: 11 November 2020 (Applicant) 16 November 2020 (Respondents) Date of hearing: 2 November 2020 Counsel for the Applicant: Mr B McClintock SC with Mr M Richardson Solicitor for the Applicant: Mark O'Brien Legal Counsel for the Respondents: Ms L Barnett with Mr C Mitchell Solicitor for the Respondents: Minter Ellison Counsel for the Inspector-General of the Australian Defence Force Ms A Mitchelmore SC with Mr J Edwards Solicitor for the Inspector-General of the Australian Defence Force 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: BESANKO J DATE OF ORDER: 23 DECEMBER 2020 THE COURT ORDERS THAT: 1. With respect to the affidavit of the applicant affirmed on 2 September 2020 xx xxxxxxxxxxxxxxxxxxxxxxx: (a) the applicant may produce the affidavit to the respondents with the following paragraphs redacted: paragraphs 1–9, 11–17, 20–51, 53–55 and 95–100; (b) the applicant's application (paragraphs 18–19, 52 and 56–94) be otherwise adjourned to a date to be fixed. 2. With respect to the affidavit of Emma Roberts-Smith sworn on 30 September 2020 xx xxxxxxxxxxxxxxxxxxxxxxxx: (a) the applicant may produce the affidavit to the respondents with the following paragraphs redacted: paragraphs 1–13, 15–16 and 33–44; (b) in addition to the information already disclosed, paragraph 24 be disclosed to the respondents; and (c) the applicant's application (paragraphs 14, 17–23 and 28–32) be otherwise adjourned to a date to be fixed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REDACTED REASONS FOR JUDGMENT BESANKO J: 1 This is an application by the applicant in three defamation proceedings in the Court for an order that, in complying with his discovery and production obligations with respect to two affidavits, he is entitled to exclude from those affidavits information which is not relevant to any of the issues in the proceeding. The dispute between the parties arose in the following way. The applicant made discovery of the two affidavits, but both affidavits were heavily redacted on the ground that the applicant considered that the redacted material was irrelevant. The applicant claimed that he was entitled to do that, but, in the alternative, he made an oral application (the respondents did not insist on a written application) for an order of the Court that he is entitled to make the redactions on the ground that the information redacted is not relevant. The respondents disputed the applicant's right to redact any part of the affidavits. 2 The discovery of documents in this proceeding has taken place by way of categories of documents which have been agreed between the parties. 3 The respondents submitted that, at least in cases where discovery is made by categories of documents, a party is not entitled to redact information in a document on the ground that the information is irrelevant. They claim that if a document falls within the description of the category of documents, then the whole document must be discovered and produced by the party making discovery. The respondents referred to a number of authorities which they submitted were to this effect (see, for example, Australian Competition and Consumer Commission v McMahan Services Pty Ltd [2004] FCA 353; Fig Tree Developments Ltd v Australian Property Custodian Holdings Ltd [2008] FCA 1041; – but see also Egglishaw v Australian Crime Commission (No 2) [2009] FCA 12; (2009) 71 ATR 570 at [25]–[26]). 4 I do not need to enter into this debate and examine the authorities which have considered this issue because, as I have said, the applicant has made an application for an order that he is entitled to redact information which is not relevant. 5 The applicant submitted that this was an appropriate case for the judge to examine the unredacted documents and make a decision as to the relevance of the redacted information without the party seeking the documents being provided with unredacted copies of the documents. He referred to Clifford v Vegas Enterprises Pty Ltd (No 2) [2010] FCA 36; (2010) 182 FCR 448 at [7]–[12] per Barker J and MJ Corrosion Consultants Pty Ltd v Gilmour [2011] FCA 1514 at [19] per Barker J as support for the adoption of such a procedure. In those cases, Barker J adopted a procedure whereby he examined the unredacted paragraphs of an affidavit so that he could determine the relevance of the redacted portions. Having done that, his Honour was able to make rulings on relevance. This is a procedure which may be adopted, but it is one that should be used with circumspection. That is because at the discovery stage the judge is unlikely to be as well-informed as the parties as to the issues in the case and because issues of relevance can be finely balanced, particularly as information may be relevant because it provides the context for information which is plainly relevant. Absent the provision of the whole document, an alternative procedure to that described is that the unredacted documents are provided to select members of the other side's legal team. At all events, I was persuaded that the first procedure was the appropriate procedure in this case xxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx xxxxxxx xxxxxxxx xxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx. Bearing in mind that the issue is relevance, not, for example, privilege, I considered I could examine the unredacted affidavits without compromising my position as trial judge. 6 One of the agreed categories of documents for discovery by the applicant (category 31) is described as follows: "All documents referring to or concerning any separation between the Applicant and his wife in 2017 and/or 2018". One of the imputations alleged by the applicant to have arisen out of the articles published by the first respondent is that the applicant committed an act of domestic violence against a woman (Person 17) in the Hotel Realm in Canberra. 7 In response to the applicant's claims, the respondents have pleaded, inter alia, justification under s 25 of the Defamation Act 2005 (NSW) and contextual truth under s 26 of the said Act. The respondents have provided extensive particulars of truth and, in relation to the imputation of domestic violence, one of the allegations pleaded by the respondents is as follows: From about 13 October 2017 to 5 April 2018 the Applicant engaged in an extra-marital affair with Person 17. 8 It is clear from various affidavits and outlines of evidence filed by the applicant that his case is that he was separated from his wife during the relevant period (i.e., approximately October 2017 to April 2018) and his relationship with Person 17 was not an extra-marital affair. 9 xxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxx xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx By letter dated 12 October 2020, the respondents asked the applicant to produce all documents that are within the agreed categories of documents. On 30 October 2020, the applicant's solicitors wrote to the respondents' solicitors enclosing an affidavit of the applicant dated 2 September 2020 and annexures, and an affidavit of Emma Roberts-Smith dated 30 September 2020.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx. They are the two affidavits which were heavily redacted by the applicant. In the letter from the applicant's solicitors dated 30 October 2020, they advised the respondents' solicitors as follows: xxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxx In circumstances where only one paragraph in each affidavit and a one sentence in an annexed letter are relevant to any of the agreed categories for discovery, we have redacted the balance of the material. Should the Respondents assert they are entitled to full copies of the xxxxxxxxxxx affidavits, our client is agreeable to producing at an appropriate time complete copies of the documents to the Court for review by his Honour Justice Besanko. 10 One paragraph in the applicant's xxxxxxxxx affidavit has been disclosed (paragraph 10). The rest of the affidavit has been redacted. There are four annexures to the applicant's xxxxxxxxx affidavit and they comprise, relevantly for present purposes, two solicitors' letters. One sentence in one of those letters has been disclosed. The rest of the annexures have been completely redacted. Emma Roberts-Smith's xxxxxxxxx affidavit has been redacted, save and except for paragraph 27 of the affidavit. The applicant has since disclosed paragraphs 25 and 26 to the respondents on the basis that the information in those paragraphs is also relevant. 11 The information which has been disclosed in the xxxxxxxxx affidavits and which the applicant accepts is relevant concerns the alleged separation and period of separation of the applicant and Emma Roberts-Smith in or about 2017 and 2018. 12 The applicant's solicitor, Ms Monica Allen, has sworn an affidavit which is relied on by the applicant on the present application. Ms Allen is informed and believes that the applicant and his wife separated on or about 18 January 2020 xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxx. 13 In addition to Ms Allen's affidavit, the applicant filed a short outline of submissions in support of his application. The respondents filed a short outline of submissions in response. 14 The applicant refers to the relevant imputation of an act of domestic violence against Person 17 in the Hotel Realm in Canberra and the plea of truth in response to this imputation. One of the particulars of the plea of truth is that the applicant was having an affair with Person 17 during the period when the domestic violence allegedly occurred. 15 The applicant submits that the information he has not disclosed is not relevant. xxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 16 The respondents submit that the whole affidavits should have been and should be disclosed. Alternatively, they submit that the applicant's initial redaction of paragraphs 25 and 26 and then withdrawal from that position, can give one no confidence about the applicant's selection of what is relevant and what is not. 17 My approach to the redactions in the affidavits is as follows. If I am clearly satisfied that information is not relevant, then I have upheld the applicant's claim to redact it. I have taken this approach because the information is not only irrelevant, but it is also sensitive information. It should be noted that my order will not be framed in a way which prevents the information from being disclosed and, in the perhaps unlikely event that it becomes relevant, the applicant will be under the usual obligation to disclose it. In addition to the information already disclosed, there must be disclosure of paragraph 24 of the affidavit of the former wife of the applicant so that there is an identification of the "this time" in paragraph 25. That leaves a category of information where I am not clearly satisfied that the information is not relevant and I will invite the applicant to consider his position. If the applicant maintains a relevance objection, then, subject to any further submissions from the parties, I will require (at least) disclosure to a limited number of members of the respondents' legal team so that I can have the benefit of submissions from both parties. 18 I start with the applicant's xxxxxxxxx affidavit. 19 xxxxxxxxxxx xxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx 20 Paragraphs 1 to 9 contain background information xxxxx xxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxxx that is either well-known (e.g., applicant's date of birth) or clearly irrelevant. Paragraph 10 contains information which has been disclosed. Paragraph 11 contains information which is in the same category as that in paragraphs 1 to 9. 21 xxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxx xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Although category 31 was the category of documents emphasised in submissions, there are other categories dealing with, for example, documents relevant to the applicant's claim for loss and damage. Those categories relate to a period from 2012 to date. The information in paragraphs 53 to 55 pre-dates that period and appears to be irrelevant. The difficulty with the information in paragraphs 52 and 56 to 94 (and the annexure referred to therein) is that it is difficult to untangle the periods before and after 2012 and it is not possible for me to conclude that it is irrelevant. The information falls into the third category. The information in paragraphs 95 to 100 is irrelevant and need not be disclosed. 22 I turn now to the xxxxxxxxx affidavit of the applicant's former wife. xxxxxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx xxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Paragraphs 17 to 23 relate to the applicant's behaviour since the Inspector-General of the Australian Defence Force commenced an investigation into alleged criminal activity by Australian Defence Force members whilst serving in Afghanistan on 13 October 2013. I am not able to say that the information in these paragraphs is not possibly relevant to the applicant's reaction to the publications. As I have said, the information in paragraph 24 should be disclosed. I am unable to say that the information in paragraphs 28 to 32 is irrelevant for similar reasons to the information in paragraphs 17 to 23 and it falls within the third category. The information in paragraphs 33 to 44 appears to me to be irrelevant. 23 In conclusion, information in paragraph 24 in the affidavit of the applicant's former wife must be disclosed in addition to the information already disclosed. The information in the applicant's xxxxxxxxx affidavit in paragraphs 1–9, 11–17, 20–51, 53–55 and 95–100, and the information in the xxxxxxxxx affidavit of the applicant's former wife in paragraphs 1–13, 15–16 and 33–44 need not be disclosed. I will hear the parties as to the balance of the information. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko. Associate: Dated: 23 December 2020 SCHEDULE OF PARTIES NSD 1485 of 2018 NSD 1486 of 2018 NSD 1487 of 2018 Respondents Second Respondent: NICK McKENZIE Third Respondent: CHRIS MASTERS Fourth Respondent: DAVID WROE