Federal Court of Australia Roberts-Smith v Fairfax Media Publications Pty Limited (No 15) [2021] FCA 582 File numbers: NSD 1485 of 2018 NSD 1486 of 2018 NSD 1487 of 2018 Judgment of: ABRAHAM J Date of judgment: 1 June 2021 Catchwords: PRACTICE AND PROCEDURE - subpoena issued to Person 35 by respondents– whether a legitimate forensic purpose exists – where only portion of document subject to a claim of public interest immunity by the Commonwealth – entire document subject to claim for public interest immunity by non-party – where also claimed documents are irrelevant Legislation: Inspector General Australian Defence Force Regulations 2016 (Cth) s 21 Evidence Act 1995 (Cth) s 102 Cases cited: Boase v Axis International Management Pty Ltd (No 3) [2012] WASC 498 Brand v Digi-Tech (Australia) Ltd [2001] NSWSC 425 Carter v Hayes SM (1994) 61 SASR 451 Chief Executive Officer of Australian Transactions Reports and Analysis Centre v TAB Ltd [2016] FCA 122 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 Fried v National Australia Bank Ltd [2000] FCA 911; (2000) 175 ALR 194 Hooke v Bux Global Limited (No 2) [2018] FCA 836 Liristis v Gadelrabb [2009] NSWSC 441 Medical Board of South Australia v Fisher [2000] SASC 92; (2000) 76 SASR 242 Roberts-Smith v Fairfax Media Publications Pty Limited (No 6) [2020] FCA 1285 Roberts-Smith v Fairfax Media Publications Pty Limited (No 8) [2020] FCA 1630 Roberts-Smith v Fairfax Media Publications Pty Limited (No 14) [2021] FCA 552 Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 Wong v Sklavos [2014] FCAFC 120; (2014) 319 ALR 378 Young v Quin (1985) 4 FCR 483 Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 38 Date of hearing: 7 May 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. C Mitchell Solicitor for the Respondents: Minter Ellison Counsel for the Inspector-General of the Australian Defence Force Mr. A Berger QC with Mr. J Edwards and C Ernst Solicitor for the Inspector-General of the Australian Defence Force Australian Government Solicitor Counsel for the Commissioner of the Australian Federal Police Mr. E Muston SC with Ms. B Anniwell Solicitor for the Commissioner of the Australian Federal Police Australian Government Solicitor Counsel for Person 35 Mr. T Saunders Solicitor for Person 35 Addisons 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: 1 June 2021 THE COURT ORDERS THAT: 1. Person 35's application to strike out the subpoena issued 1 April 2021 to Person 35 is dismissed. 2. Person 35's claim for public interest immunity over the redacted document within the scope of that subpoena is not established. 3. Costs to be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ABRAHAM J: 1 By way of an interlocutory application filed on 3 May 2021 Person 35 seeks to set aside a subpoena issued by the respondents addressed to him dated 1 April 2021 (the Subpoena), but of which there is a document within the scope of its terms (the Document). The Commonwealth claimed public interest immunity over aspects of that Document, with the respondents not challenging the Document being redacted in accordance with that claim. Person 35 contends the Commonwealth should claim public interest immunity over the entire document or, he claims public interest immunity over the reminder of the document, which the Commonwealth fails to claim. Person 35 also submitted the remainder of the Document is irrelevant to these proceedings and has no legitimate forensic purpose. 2 This objection to production and the public interest immunity claim were heard at the same hearing as those claims which are addressed in Roberts-Smith v Fairfax Media Publications Pty Limited (No 14) [2021] FCA 552 (Roberts-Smith (No 14)). 3 These reasons are to be read in conjunction with those provided in the open reasons in Roberts-Smith (No 14). Legal principles 4 The principles applicable to the determination of a claim for public interest immunity are summarised in that judgment at [10]-[26], and do not need to be repeated here. 5 To that summary I add that a claim for public interest immunity may be made by any person (including one not a party to the proceedings): Young v Quin (1985) 4 FCR 483 (Young v Quin) at 485, and the court itself might be obliged to prevent disclosure even though no claim is made: Young v Quin at 485; Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 (Sankey v Whitlam) at 58-59, 68. 6 However, given the basis of Person 35's objection it is necessary to address some additional principles, not necessary for consideration in the other applications. 7 The party who issued the notice to produce carries the onus of establishing that they are entitled to the documents sought: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 at [6] per Collier J. 8 Those principles are well established, and were summarised in Wong v Sklavos [2014] FCAFC 120; (2014) 319 ALR 378 at [12] as follows: The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38 at 52. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: Trade Practice Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76 at [39]-[40]; McHugh v Australian Jockey Club Limited [No 2] [2011] FCA 724 at [13]; McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785 at [35]; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 558 at [17]. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative (R v Barton (1981) 2 NSWLR 414 at 420), or that the material sought is reasonably likely to add in some way to the relevant evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 927), or that it be "on the cards" that the documents sought will materially assist the party at whose request the subpoena has been issued: Allister v The Queen (1984) 154 CLR 404 at 414; Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 at [13], [35]-[38]. 9 Therefore, there must be a legitimate forensic purpose in seeking the documents for them to be the subject of a subpoena. They must have an apparent relevance in relation to the issues in the proceedings. The test for apparent relevance has been described as having a low threshold. A document or class of documents may satisfy that threshold if it gives rise to a line of enquiry relevant to the issues before the trier of fact: Hooke v Bux Global Limited (No 2) [2018] FCA 836 at [38], citing Boase v Axis International Management Pty Ltd (No 3) [2012] WASC 498 at [11]. What is involved then is a question about reasonable likelihood, not possibility: Chief Executive Officer of Australian Transactions Reports and Analysis Centre v TAB Ltd [2016] FCA 122 at [40] citing Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [6]. Submissions – Person 35 10 Person 35 objects to the Subpoena issued by the respondents, directed to him in the following terms: One copy of all documents comprising your disciplinary records relating to or connected to matters investigated by The Inspector-General of the Australian Defence Force Afghanistan Inquiry, including any show cause notices issued to you on or since 6 November 2020. 11 The Commonwealth notified the parties in a letter dated 28 April 2021 that they only claim public interest immunity over parts of the Document (he contended there is only one document in answer to the subpoena) that relate to the Inquiry findings and information identifying Person 35. The respondents took no issue with that approach, with such material being redacted by the Commonwealth. 12 Person 35 submitted that the Commonwealth should claim public interest immunity over the entire document. Failing that, Person 35 claimed public interest immunity over the reminder of the Document, submitting he has standing to do so citing Young v Quin (1985) 4 FCR 483 at 485. Person 35 also submitted the Document is irrelevant to these proceedings and has no legitimate forensic purpose. 13 Person 35 submitted that the evidence is only said to go to credit. He submitted the following: first, the allegations against him are irrelevant to the proceedings; second, none of the evidence has been tested by representatives for the affected persons and only selective redacted evidence was disclosed and exculpatory material was not disclosed; third, he and his lawyers are legally prevented by s 21 of the Inspector General Australian Defence Force Regulations 2016 (Cth) (IGADF Regulations) from making submissions about the material; fourth, Person 35 will be severely disadvantaged from being able to give evidence in an unfettered manner as he will be bound by the s 21 direction; fifth, the Court and parties will be left to speculate as to why the Document was issued; sixth, the Document was not acted on by the Australian Defence Force (ADF), and therefore is irrelevant; seventh, the Document contains personal information, the disclosure of which inadvertent or otherwise, would cause great distress in circumstances where if he is ever charged, he will vigorously contest these matters; eighth, the fact of the Document being issued may harm his right to a fair trial in the future, if disclosed publicly, inadvertent or otherwise; and ninth, there would be a serious risk of reputational harm to Person 35. Those points were expanded upon in written and oral submissions. Person 35 also submitted that the allegation has nothing to with the proceedings on foot and if permitted "[i]t will become a sideshow to these proceedings". 14 As to risk of disclosure, Person 35 referred to Roberts-Smith v Fairfax Media Publications Pty Limited (No 8) [2020] FCA 1630 (Roberts-Smith (No 8)) at [17]. Person 35 also submitted that the redactions render the Document innocuous such that there is no legitimate forensic purpose, referring to Roberts-Smith v Fairfax Media Publications Pty Limited (No 6) [2020] FCA 1285 (Roberts-Smith (No 6)) at [74]. Submissions – respondents 15 The respondents submitted that given the proposed evidence of Person 35, his versions of events, and his credibility, will be live issues. Both the fact of the Document, and the unredacted portions, are likely to be relevant and capable of providing a legitimate basis for cross-examination on substantive matters, or at the very least it may be relevant to credit, referring to Brand v Digi-Tech (Australia) Ltd [2001] NSWSC 425 (Brand v Digi-Tech) at [36]. It was submitted that none of Person 35's arguments in opposition render the Document irrelevant or incapable of providing a legitimate basis for cross-examination. 16 It was submitted that Person 35 did not identify any error in the Commonwealth's proposed redactions to the Document (either at a level of principle or in relation to any specific redaction). They are based on the reasoning of Colvin J. They are directed at preventing the disclosure of any material that might prejudice future criminal proceedings to the respondents. It was submitted that in respect to public interest immunity, Person 35's submissions do not alter the positon. The Document recording the findings of the IGADF Inquiry does not have "speculative benefit". The redaction regime consistent with that ordered by Colvin J has not rendered the material so innocuous as to deprive it of any forensic purpose. Privacy and confidentiality concerns are similarly not matters warranting setting the Subpoena aside. Person 35's identity in this proceeding is protected. Further, the fact that neither party presently has the requested documents is not a basis to deny production. Consideration 17 Person 35 is a witness to be called by the applicant and, in that context, the respondents have issued this subpoena. As is plain, the identity of Person 35 is protected in these proceedings. The redactions to the Document within the terms of the subpoena made by the Commonwealth include his identity. The redactions made by the Commonwealth are consistent with the reasons of Colvin J in Roberts-Smith (No 6) and Roberts-Smith (No 8). The respondents do not challenge those redactions and seek the redacted Document. 18 It is important to recall at the outset, particularly given some of the submissions advanced by Person 35, that although the Court is considering, inter alia, the argument as to there being no forensic purpose, the claim that the Document is not relevant and the issue of further public interest immunity, this Court is not ruling on the use and admissibility of the evidence in the trial. If the Document is produced in answer to the subpoena, any decision as to its use and admissibility will be a matter for the primary judge hearing the proceedings. 19 It is also important to address at the outset, that during the hearing the Court inquired with the IGADF about the effect of s 21 on a witness' ability to give evidence, to which he submitted that for present purposes it was not contended that a person subject to a s 21 direction could not give evidence if subpoenaed, as no offence would be committed either by virtue of operation of statutory construction or on the basis that there would be a lawful excuse to do so. Despite the IGADF making that submission and on more than one occasion, Person 35 continued to repeatedly assert that he will be prevented from giving evidence. In light of the position of the IGADF, Person 35 did not explain why his submission was correct, despite an invitation from the Court to provide a basis for the submission. I note for completeness that although counsel for Person 35 originally made submissions on the basis that he had sought to be released from the s 21 order by the IGADF to enable submissions to be made, it became apparent during the hearing that although he may have done so in respect to other persons for whom he acted, he had not done so in respect to Person 35. 20 In that context, I therefore proceed on the basis of the position in respect to s 21 as expressed by the IGADF. 21 Against that background, I turn to the submissions made. 22 It is first necessary to address Person 35's submission attempting to strike out the Subpoena, as it is only if that application fails does his claim for public interest immunity arise. 23 It is timely to recall that the respondents bear the onus of establishing that there is a legitimate forensic purpose in the Subpoena, but in relation to the claim for public interest immunity, the onus is on Person 35. Legitimate forensic purpose 24 It may be accepted, that documents that are relevant to the credit of a witness may be capable of providing a legitimate basis for cross-examination. The respondents referred to and relied on Brand v Digi-Tech, where Hunter J observed at [36]: ...it is indisputable that, if the subpoenaed documents are by their description, arguably relevant or capable of providing a legitimate basis for cross-examination on credit matters, then an application to set aside a subpoena on the grounds of irrelevance of the documents to the proceedings is misconceived. And see Fried v National Australia Bank Ltd [2000] FCA 911; (2000) 175 ALR 194 (Fried) at [24]; and Liristis v Gadelrabb [2009] NSWSC 441 at [4]; Carter v Hayes SM (1994) 61 SASR 451 at 453. Although, as Weinberg J observed in Fried at [28], s 102 of the Evidence Act 1995 (Cth) makes it plain that, subject to specific exceptions, evidence that is relevant only to a witness' credibility is inadmissible, and so some caution may need to be exercised when considering that as a basis for a subpoena. 25 Person 35 relied on Roberts-Smith (No 6) at [74], where Colvin J observed: …In reaching that conclusion I note that to the extent that there may be documents that do not contain information about the subject matter of the Inquiry they would not be materially relevant to the defamation proceedings. Therefore, if and to the extent that it might be said that the content of some documents is sufficiently innocuous that there is no public interest in preserving the non-disclosure of their content, then that set of documents would be irrelevant in any event and therefore not discoverable and documents for which there would be no legitimate forensic purpose in seeking their production. 26 This observation was made in relation to the determination of a discovery dispute between the parties. Person 35 contended that the document is rendered innocuous, and as such is irrelevant to the proceedings. 27 "Innocuous" tends to suggest a document which is not harmful or injurious, as might be expected in relation to discovery. 28 Person 35 made what appears to be conflicting submissions on this aspect. On the one hand he contended that the document did not relate to anything to do with defamation proceedings, and was therefore irrelevant. That submission is only an assertion from the bar table, but accepting that is so for the purposes of argument, importantly, as a general proposition, a person's credit may be affected by matters personal to them and unrelated to the underlying proceedings. So much should be uncontroversial. Rather, it is a question of fact in the particular case whether such a matter affects a person's credit in respect to the evidence given by them. On the other hand, Person 35 submitted that the document itself, even in the redacted form, is prejudicial. Although that submission was made and included that knowledge of the existence of the document is itself prejudicial, curiously, Person 35's written submissions identify the nature of the document. That does not sit comfortably with Person 35's submission that the document does not contain adverse information. I do not agree with Person 35's characterisation of the document as "innocuous". 29 The very nature of the document, even in its redacted form, makes it arguably relevant to credit. Person 35's submission that the ADF has not yet made any decision in relation to the Document, does not detract from that. Person 35's submission that the release of the Document would result in an unnecessary sideshow in the defamation proceedings is dependent on the use to be made of it at trial and, as noted above, is properly a matter for the trial judge. Person 35's submission that the Document would be prone to misuse, does not address whether it has a legitimate forensic purpose. The use to be made of the Document will be a matter for the respondents, in accordance with the rulings of the trial judge. If it is used, what weight will be attached to what ensues from its use will be a matter for the trial judge in all the circumstances of the case. There is no basis to suppose that the trial judge would consider the document otherwise than appropriately. If counsel for Person 35 sought to put submissions to the trial judge as to the Document, including as to its protection, there is no reason to suppose he would be unable to do so. The respondents have established that there is a legitimate forensic purpose in the Document. Public interest immunity 30 The claim for public interest immunity is in a context where Person 35 is a witness for the applicant in defamation proceedings. There is no information to suggest he is other than a voluntary witness. It is that context in which the information is sought. 31 The fact that the Commonwealth, who created the document, has the power to make a claim for public interest immunity, and after proper consideration only made the claim over part of the document, will weigh against any such claim by Person 35: see for example: Sankey v Williams at 44-45, 68-69; Medical Board of South Australia v Fisher [2000] SASC 92; (2000) 76 SASR 242 at [37(8)]. This must be particularly so when it is apparent that the Commonwealth has formed a view as to what information in the Document needs to be protected in the public interest. It may be inferred that the Commonwealth concluded, at the very least, that there is an insufficient basis to claim immunity in relation to the remainder of the document: see Sankey v Williams at 44-45. This is also in a context where the material before the Court reflects that Person 35 has urged upon the Commonwealth to reconsider its position and to claim immunity over the entire document. It may readily be inferred that the Commonwealth made a considered decision not to do so. 32 This claim is also in the context where Colvin J in Roberts-Smith (No 8) relevantly concluded at [16]-[17] in respect to third parties: [16] .…I am satisfied that public interest immunity extends to the Third Party Information. To be specific, public interest immunity has been demonstrated in respect of information of the following kind: (1) Information acquired compulsorily by the Inquiry from persons other than Mr Roberts-Smith who, in the reasonable assessment of the IGADF by relevant officers, may themselves be the subject of future criminal processes. (2) Information acquired by the Inquiry derivatively (directly or indirectly) from persons other than Mr Roberts-Smith who, in the reasonable assessment of the IGADF by relevant officers, may themselves be the subject of future criminal processes. (3) Responses to the Inquiry from Mr Roberts-Smith that restate or indicate any of the matters in (1) or (2). (Further Excluded Category) [17]. As to the Further Excluded Category, I am satisfied that a balancing of the competing public interests of the kind described in my earlier decision leads to the conclusion that there is a sufficient risk that the information might be used by the respondents in the conduct of their defence of the defamation proceedings in a manner that might result in an application to permanently stay any criminal proceedings against those third parties and that there is a substantial public interest in taking steps to maintain confidentiality to prevent that risk becoming manifest in the particular circumstances revealed by the confidential affidavit material. In reaching that conclusion I have formed the view that the information is of a kind that once known to those acting for the respondents it might be deployed unconsciously or indirectly in the forensic task of conducting the respondents' defence. There is also the risk of inadvertent disclosure which could have consequences for establishing any criminal responsibility. 33 That is the basis on which information has been redacted from the Document. 34 Person 35 has not established his claim over the remainder of the Document. 35 The submission, in so far as it relies on the need to preserve the integrity of future hearings by the IGADF, I take to be akin to the second basis of the claim relied on by the IGADF in relation to the subpoena addressed to it, discussed in Roberts-Smith (No 14). It is telling that this is a matter particularly within the realm of knowledge of the IGADF and the Commonwealth in a context where such a claim has been made in respect to other subpoenas, yet no such basis is claimed in this case. 36 Further, there is no basis to Person 35's submission that if the document is released to the parties it will invariably lead to further subpoenas for other protected information from the Inquiry. As made clear in Roberts-Smith (No 14), any subpoena will be considered on its facts. Reciting how many documents were involved in the Inquiry does not advance Person 35's claim. 37 Person 35 also submitted that the release of the document may prejudice any criminal trial if he were to be charged with a criminal offence. It is submitted that the fact of the Document alone may harm his right to a fair trial in the future if disclosed publicly, inadvertently or otherwise. I accept that there is a risk of inadvertent disclosure. However, the document does not identify Person 35. Removed from the document, in accordance with the judgment of Colvin J were matters which might be prejudicial to him. It is only the nature of the remainder of the document which is in issue. His identity in the trial is protected. There is no reason to suppose that will not remain protected. The document will only able to be used within the confines of these proceeding in accordance with the Harman undertaking, the basis on which the parties will have received it. 38 Person 35 has not established that there is a public interest in the protection of the redacted Document. He has not established his claim for public interest immunity over the remainder of the Document. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham. Associate: Dated: 1 June 2021 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