Roberts-Smith v Fairfax Media Publications Pty Limited (No 37) [2022] FCA 580

Roberts-Smith v Fairfax Media Publications Pty Limited (No 37) [2022] FCA 580

The application was allowed for Person 33 because the respondents assessed the risk that cross-examination would require closed Court as small and did not oppose that part of the application. The application was refused for Person 9 because there was a more than reasonable chance that the respondents would need to ask the Court to move into closed Court for part of his cross-examination, and if Person 9 gave evidence by audio-visual link the respondents would be denied the opportunity to put relevant material to him to challenge his evidence; the prospect of a closed Court hearing was sufficiently strong to reject the applicant's 'wait and see' approach.

Jurisdiction
Australia
Judgment Date
17 May 2022
Procedural Posture
Interlocutory Application by Applicant for Orders That Two Witnesses Be Permitted to Give Evidence at Trial by Audio Visual Link / Interlocutory Application
Outcome
Application granted insofar as it concerns Person 33 and refused insofar as it concerns Person 9.
Legal Topics
['audio Visual Link Evidence' 'closed Court' 'sensitive Information' 'cross Examination' 'federal Court Procedure']
['practice and Procedure' 'national Security Information'] ['audio Visual Link Evidence' 'closed Court' 'sensitive Information' 'cross Examination' 'federal Court Procedure']

Case Brief

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Procedural Posture

Interlocutory Application by Applicant for Orders That Two Witnesses Be Permitted to Give Evidence at Trial by Audio Visual Link / Interlocutory Application

Legal Issues

  1. 1 ['Whether Person 9 should be permitted to give evidence at trial by audio-visual link under s 47A(1) of the Federal Court of Australia Act 1976 (Cth).' 'Whether Person 33 should be permitted to give evidence at trial by audio-visual link under s 47A(1) of the Federal Court of Australia Act 1976 (Cth).' 'Whether the possibility that Sensitive Information would need to be put in cross-examination in closed Court made audio-visual link evidence inappropriate for Person 9.']

Ratio Decidendi

The application was allowed for Person 33 because the respondents assessed the risk that cross-examination would require closed Court as small and did not oppose that part of the application. The application was refused for Person 9 because there was a more than reasonable chance that the respondents would need to ask the Court to move into closed Court for part of his cross-examination, and if Person 9 gave evidence by audio-visual link the respondents would be denied the opportunity to put relevant material to him to challenge his evidence; the prospect of a closed Court hearing was sufficiently strong to reject the applicant's 'wait and see' approach.

Court Disposition

Application granted insofar as it concerns Person 33 and refused insofar as it concerns Person 9.

Orders

  • ["The applicant's Interlocutory application dated 30 April 2021 be granted insofar as it concerns Person 33 and be refused insofar as it concerns Person 9."]