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

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

The signed statement of Person 56 was a material change in circumstances because the absence of such a statement or sufficient equivalent had been decisive in the earlier refusal of leave. Although the arrangement concerning the respondents' position on any s 128 objection should have been disclosed at the outset and was capable of bearing on credibility, it was not a sufficient reason to refuse leave. Person 56 could give relevant evidence on an important matter and the applicant did not establish prejudice that justified refusal. On Person 56's application, the Court accepted that giving evidence created risks of adverse effects on his mental health and treatment, but the evidence did...

Jurisdiction
Australia
Judgment Date
23 March 2022
Procedural Posture
Civil Defamation Proceeding; Practice and Procedure Interlocutory Applications / Interlocutory Applications for Leave to Issue a Subpoena to Give Evidence to Person 56 and to Set Aside That Subpoena
Outcome
Respondents' application granted; Person 56's application dismissed.
Legal Topics
['leave to Issue Subpoena to Give Evidence' 'setting Aside Subpoena' 'oppression or Abuse of Process' 'mental Health of Proposed Witness' 'material Change in Circumstances' 'prejudice' 'privilege Against Self Incrimination Under S 128 of the Evidence Act 1995 (cth)']
['practice and Procedure' 'evidence' 'defamation'] ['leave to Issue Subpoena to Give Evidence' 'setting Aside Subpoena' 'oppression or Abuse of Process' 'mental Health of Proposed Witness' 'material Change in Circumstances' 'prejudice' 'privilege Against Self Incrimination Under S 128 of the Evidence Act 1995 (cth)']

Case Brief

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Procedural Posture

Civil Defamation Proceeding; Practice and Procedure Interlocutory Applications / Interlocutory Applications for Leave to Issue a Subpoena to Give Evidence to Person 56 and to Set Aside That Subpoena

Legal Issues

  1. 1 ['Whether the provision of a signed statement by Person 56 constituted a material change in circumstances since the earlier refusal of leave to issue a subpoena to him.' "Whether the arrangement between the respondents and Person 56 concerning the respondents' position on any s 128 objection in relation to Fasil was a reason to refuse leave to issue the subpoena." 'Whether the applicant would suffer prejudice if Person 56 were subpoenaed, including because Afghan witnesses had already been cross-examined.' "Whether the subpoena to give evidence should be set aside under r 24.15 of the Federal Court Rules 2011 (Cth) as oppressive or an abuse of process because of the effect of giving evidence on Person 56's mental health."]

Ratio Decidendi

The signed statement of Person 56 was a material change in circumstances because the absence of such a statement or sufficient equivalent had been decisive in the earlier refusal of leave. Although the arrangement concerning the respondents' position on any s 128 objection should have been disclosed at the outset and was capable of bearing on credibility, it was not a sufficient reason to refuse leave. Person 56 could give relevant evidence on an important matter and the applicant did not establish prejudice that justified refusal. On Person 56's application, the Court accepted that giving evidence created risks of adverse effects on his mental health and treatment, but the evidence did...

Court Disposition

Respondents' application granted; Person 56's application dismissed.

Orders

  • ['The respondents be granted leave to issue a Subpoena to give evidence to Person 56.' "Person 56's application to set aside the Subpoena to give evidence be refused."]