Roberts-Smith v Fairfax Media Publications Pty Limited (No 30) [2022] FCA 266

Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 30) [2022] FCA 266 File numbers: NSD 1485 of 2018 NSD 1486 of 2018 NSD 1487 of 2018

Judgment of: BESANKO J

Date of judgment: 23 March 2022

Catchwords: PRACTICE AND PROCEDURE — Interlocutory application by respondents for leave to issue Subpoena to give evidence to person known as Person 56 (respondents' application) — where time within which respondents were to file and serve outlines of evidence fixed for 31 May 2019 — where no outline of evidence of Person 56 served at that time — where previous application issued by respondents and dated 15 March 2021, for leave to issue Subpoena to Person 56, refused including on basis that respondents unable to obtain outline of evidence of Person 56 — where trial adjourned in August 2021 due to COVID-19 pandemic — where respondents' solicitor swore affidavit on respondents' application deposing as a result of developments in trial up to that point, respondents decided to make further attempt to speak with Person 56 — email dated 1 September 2021 from respondents' solicitors to counsel for Person 56 recording proffering of undertaking that if Person 56 agreed to speak with respondents with respect to mission to Darwan in September 2012, respondents would not make any submission at trial that Person 56 be required to give evidence with respect to mission to Fasil in November 2012 should Person 56 take objection to giving evidence under s 128 of Evidence Act 1995 (Cth) — where Particulars of Truth contained in respondents' Second Further Amended Defence include allegation that applicant executed Afghan adolescent during mission to Fasil — where evidence tendered on respondents' application included internal memorandum of respondents' solicitors recording understanding that Person 56 involved in alleged execution — where respondents received signed statement of Person 56 in October 2021, containing matters relating to mission to Darwan — whether provision of statement constitutes material change in circumstances to those pertaining at time 15 March 2021 application refused — whether arrangement between respondents and Person 56 and circumstances of disclosure of arrangement reason to refuse application — consideration of asserted prejudice to applicant of Subpoena being issued — whether applicant prejudiced by inability to cross-examine Afghan witnesses on matters contained in statement of Person 56 — leave to issue Subpoena granted PRACTICE AND PROCEDURE — Interlocutory application by Person 56 under r 24.15 of Federal Court Rules 2011 (Cth) to set aside Subpoena to give evidence on ground that Subpoena oppressive or abuse of process — where Person 56's solicitor affirmed affidavit exhibiting report of treating psychologist outlining negative impact on Person 56's mental health of giving evidence at trial — consideration of legal test for setting aside Subpoena on mental health grounds — whether Person 56 mentally incapable of giving evidence at trial without unacceptable risk of serious mental harm, having regard to psychological evidence — application dismissed