Roberts-Smith v Fairfax Media Publications Pty Limited (No 39) [2022] FCA 805

Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 39) [2022] FCA 805 File numbers: NSD 1485 of 2018 NSD 1486 of 2018 NSD 1487 of 2018

Judgment of: BESANKO J

Date of judgment: 12 July 2022

Date of publication of reasons: 22 July 2022

Catchwords: EVIDENCE — objection by applicant to admissibility of document sought to be tendered in trial — where witness called by applicant, Person 27, cross-examined by counsel for respondents on transcript of interview of Person 27 by Assistant Inspector-General of Australian Defence Force (Assistant IGADF) — where at conclusion of cross-examination, counsel for respondents sought to tender transcript of interview — consideration of protection in s 124(2CA) of Defence Act 1903 (Cth) that statement or disclosure in course of giving evidence before Assistant IGADF not admissible in evidence against witness in any civil proceedings — whether protection commensurate with privilege against self-incrimination — consideration of decision in Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 400 ALR 56 and ss 23 and 32 of Inspector-General of the Australian Defence Force Regulation 2016 (Cth) — where Person 27 given notice requiring appearance before Assistant IGADF pursuant to s 23(3) of IGADF Regulation — where no suggestion evidence given by Person 27 before Assistant IGADF was evidence which, had privilege against self-incrimination been available, privilege could have been successfully claimed — objection overruled EVIDENCE — objection by respondents to admissibility of document sought to be tendered in trial — where witness called by respondents, Person 24, cross-examined by counsel for applicant on transcript of interview of Person 27 by Assistant IGADF — where counsel for applicant sought to tender transcript of interview — where Person 24 not given notice requiring appearance before Assistant IGADF pursuant to s 23(3) of IGADF Regulation — whether despite formal defect in notice procedure, Person 24 entitled to benefit of protection in s 124(2CA) of Defence Act — objection overruled EVIDENCE — objection by counsel for Person 24 to admissibility of transcript of interview of Person 24 by Assistant IGADF — where Person 24 relies on ss 135(a) and 138 of Evidence Act 1995 (Cth) — whether Person 24 a "party" within s 135(a) — whether Person 24 entitled to seek to engage provisions in s 138 — objection overruled