Roberts-Smith v Fairfax Media Publications Pty Limited (No 38) [2022] FCA 597

Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 38) [2022] FCA 597 File numbers: NSD 1485 of 2018 NSD 1486 of 2018 NSD 1487 of 2018

Judgment of: BESANKO J

Date of judgment: 23 May 2022

Catchwords: EVIDENCE — Ruling on admissibility of document applicant seeks to tender — document recording WhatsApp message from a Mr Sharif Khoram to solicitors for respondents dated 1 December 2020 — where witness called by respondents, Mohammed Hanifa Fatih, cross-examined by applicant on whether he had spoken to Afghan Independent Human Rights Commission (AIHRC) about events at village of Darwan on 11 September 2012 and whether he had applied for compensation from AIHRC — where counsel for applicant put to Mohammed Hanifa and Mohammed Hanifa denied that he had had telephone conversation with AIHRC official in presence of Mr Khoram during which he was informed of certain matters, including possibility of compensation by AIHRC — where WhatsApp message from Mr Khoram sets out matters Mohammed Hanifa was told by "the HRC director", including possibility of compensation by AIHRC — whether document contains prior statement, inconsistent or otherwise, made by Mohammed Hanifa — inference that WhatsApp message records statement made by Mohammed Hanifa to Mr Khoram on or shortly before 1 December 2020 — whether applicant put to Mohammed Hanifa substance of evidence and enough of circumstances of making of statement to enable witness to identify statement in accordance with ss 43 and 106(1)(a) of Evidence Act 1995 (Cth) — tender refused

Legislation: Evidence Act 1995 (Cth) ss 43, 101A, 102, 106