Roberts-Smith v Fairfax Media Publications Pty Limited (No 18) [2021] FCA 793

Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 18) [2021] FCA 793 File numbers: NSD 1485 of 2018 NSD 1486 of 2018 NSD 1487 of 2018

Judgment of: BESANKO J

Date of judgment: 14 July 2021

Catchwords: PRACTICE AND PROCEDURE — defamation proceedings — interlocutory application by third parties for an order setting aside three paragraphs of a subpoena to produce documents issued by respondents to Inspector-General of the Australian Defence Force — where third parties are former members of the Australian Defence Force and possible witnesses in these proceedings — where third parties appeared before an inquiry conducted by Inspector-General of the Australian Defence Force — where a non-disclosure direction has been given under s 21 of the Inspector-General of the Australian Defence Force Regulation 2016 (Cth) concerning disclosure of information contained in oral evidence given during Inquiry or a document received during course of Inquiry — exceptional circumstances required for Court to intervene at request of a third party where Inspector-General has considered question of public interest immunity and decided that no action should be taken — no exceptional circumstances allowing third parties to assert public interest immunity — whether production of documents pursuant to subpoena will infringe protection provided by s 124(2CA) of the Defence Act 1903 (Cth) and s 32(2) of the Regulation — production of documents and their use in these proceedings would not be "against" third parties — application dismissed

Legislation: Defence Act 1903 (Cth) s 124 Evidence Act 1995 (Cth) s 128 Royal Commissions Act 1902 (Cth) s 6DD Federal Court Rules 2011 (Cth) r 24.15 Inspector-General of the Australian Defence Force Regulation 2016 (Cth) s 21, 22, 23, 29, 32 Defamation Act 2005 (NSW) ss 25, 26 Independent Commission Against Corruption Act 1988 (NSW) s 37 Royal Commissions Act 1923 (NSW) s 17