Roberts-Smith v Fairfax Media Publications Pty Limited (No 29) [2022] FCA 218

Roberts-Smith v Fairfax Media Publications Pty Limited (No 29) [2022] FCA 218

There is no relevant inconsistency between the respondents' disclosure of the 7 February 2022 letter and their maintenance of legal professional privilege over the associated documents sought. Privilege has not been waived. The content of the letter does not itself amount to a fraud upon justice nor require disclosure of associated communications. The application for production is dismissed.

Parties
Applicant: Ben Roberts-Smith; First Respondent: Fairfax Media Publications Pty Limited; First Respondent: The Age Company Pty Limited; First Respondent: The Federal Capital Press of Australia Pty Limited; Second Respondent: Nick McKenzie; Third Respondent: Chris Masters; Fourth Respondent: David Wroe; Intervener: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
11 March 2022
Procedural Posture
Interlocutory Application / Determination of Application for Production and Inspection of Documents Claimed as Privileged
Outcome
Application dismissed
Legal Topics
Legal Professional Privilege, Waiver of Privilege, Production of Documents, Fraud Upon Justice
Practice and Procedure Evidence Legal Professional Privilege Waiver of Privilege Production of Documents Fraud Upon Justice

Case Brief

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Parties

Ben Roberts-Smith

Applicant

Fairfax Media Publications Pty Limited

First Respondent

The Age Company Pty Limited

First Respondent

The Federal Capital Press of Australia Pty Limited

First Respondent

Nick McKenzie

Second Respondent

Chris Masters

Third Respondent

David Wroe

Fourth Respondent

Commonwealth of Australia

Intervener

Procedural Posture

Interlocutory Application / Determination of Application for Production and Inspection of Documents Claimed as Privileged

Legal Issues

  1. 1 Whether legal professional privilege attaches to the documents sought
  2. 2 Whether privilege has been waived by the respondents' conduct in producing and relying on a particular letter
  3. 3 Whether there is inconsistency between the respondents' conduct and the maintenance of privilege over associated material

Ratio Decidendi

There is no relevant inconsistency between the respondents' disclosure of the 7 February 2022 letter and their maintenance of legal professional privilege over the associated documents sought. Privilege has not been waived. The content of the letter does not itself amount to a fraud upon justice nor require disclosure of associated communications. The application for production is dismissed.

Court Disposition

Application dismissed

Orders

  • The applicant's interlocutory application, dated 2 March 2022, is dismissed.
  • The applicant is to pay the respondents' costs of this application, to be agreed or assessed.