Roberts-Smith v Fairfax Media Publications Pty Limited (No 28) [2022] FCA 115

Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 28) [2022] FCA 115 File numbers: NSD 1485 of 2018 NSD 1486 of 2018 NSD 1487 of 2018

Judgment of: BESANKO J

Date of judgment: 9 February 2022

Date of publication of reasons: 16 February 2022

Catchwords: EVIDENCE — call for document by applicant of which respondents resisted production — where witness called by respondents (Person 41) asked during cross-examination whether he read a document to refresh memory prior to giving evidence and witness said he had and identified document as proof of evidence — whether evidence elicited from witness sufficient to establish he had used document to refresh or revive memory — ruling that document be produced by respondents to applicant EVIDENCE — objection by respondents to question asked of witness called by respondents (Person 14) during cross-examination — where witness asked whether prior to 2019 he had spoken to any journalist about period of service with Special Air Service Regiment concerning applicant — where objection on grounds that question not permissible by reason of journalist privilege under s 126K(1) of Evidence Act 1995 (Cth) — where applicant has not made application under s 126K(2) for order that s 126K(1) does not apply — whether effect of s 126K is Court processes cannot be used in such a way as to seek to reveal identity of confidential sources, either directly or by process of elimination — objection overruled EVIDENCE — objections by Person 14 to two questions asked during cross-examination — where witness asked during cross-examination on 7 February 2022 whether prior to 2019 he had spoken to any journalist about period of service with Special Air Service Regiment concerning applicant (first question) — where witness asked during cross-examination on 9 February 2022 whether he had received any communication from third respondent, a journalist (second question) — where Person 14 claimed privilege against self-incrimination in respect of both questions — where ruling made in respect of both objections that reasonable grounds for objection under s 128(2) of Evidence Act — where Person 14 indicated unwillingness to give evidence — whether witness ought be required to give evidence under s 128(4) of Evidence Act — consideration of matters relevant to whether interests of justice require that witness give evidence — where applicant claimed evidence important in terms of assessment of credibility and reliability of witness and possibility that affirmative answer may lead to situation in which applicant is able to test witness' evidence-in-chief against account(s) he has given to journalists — where Person 14 raised effects on him not protected by provision of certificate — witness not required to give evidence in respect of first question — where applicant raised matter in closed court subsequent to ruling on first question relevant to question of importance of evidence in terms of assessment of credibility — witness required to give evidence in respect of second question