Roberts-Smith v Fairfax Media Publications Pty Limited (No 33) [2022] FCA 420

Roberts-Smith v Fairfax Media Publications Pty Limited (No 33) [2022] FCA 420

The respondents did not establish waiver because the applicant had not made any assertion, brought any case, sought forensic advantage, or relied on the communications in a way that was inconsistent with maintaining privilege. In the circumstances, the applicant's failure to object to or cross-examine on Person 18's evidence did not amount to waiver. The respondents also failed to establish any prima facie case of fraud capable of displacing privilege, their case being unsupported by admissible evidence and amounting to speculation.

Jurisdiction
Australia
Judgment Date
22 April 2022
Procedural Posture
Defamation Proceedings; Interlocutory Application to Inspect, Uplift and Copy Documents / Respondents' Amended Interlocutory Application Dated 8 April 2022 During the Substantive Hearing and Applicant's Case in Reply
Outcome
Respondents' amended interlocutory application dismissed.
Legal Topics
['notice to Produce' 'subpoena' 'waiver of Legal Professional Privilege' 'fraud Exception to Legal Professional Privilege' 'closed Court and National Security Information']
['practice and Procedure' 'evidence' 'legal Professional Privilege' 'defamation'] ['notice to Produce' 'subpoena' 'waiver of Legal Professional Privilege' 'fraud Exception to Legal Professional Privilege' 'closed Court and National Security Information']

Case Brief

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Procedural Posture

Defamation Proceedings; Interlocutory Application to Inspect, Uplift and Copy Documents / Respondents' Amended Interlocutory Application Dated 8 April 2022 During the Substantive Hearing and Applicant's Case in Reply

Legal Issues

  1. 1 ['Whether the applicant waived legal professional privilege over communications with Person 27 by failing to object to, or cross-examine on, evidence given by Person 18.' 'Whether any express waiver gave rise to an associated or related waiver over additional communications with Person 27.' 'Whether privilege was displaced because the documents were made in furtherance of a fraud.']

Ratio Decidendi

The respondents did not establish waiver because the applicant had not made any assertion, brought any case, sought forensic advantage, or relied on the communications in a way that was inconsistent with maintaining privilege. In the circumstances, the applicant's failure to object to or cross-examine on Person 18's evidence did not amount to waiver. The respondents also failed to establish any prima facie case of fraud capable of displacing privilege, their case being unsupported by admissible evidence and amounting to speculation.

Court Disposition

Respondents' amended interlocutory application dismissed.

Orders

  • ["The respondents' amended interlocutory application dated 8 April 2022 is dismissed."]