Roberts-Smith v Fairfax Media Publications Pty Limited (No 28) [2022] FCA 115

Roberts-Smith v Fairfax Media Publications Pty Limited (No 28) [2022] FCA 115

Person 41's reference to reading his witness statement to refresh memory was sufficient for production to the applicant, resulting in waiver of privilege. Objections to relevance, credibility, and journalist privilege under s 126K(1) regarding questions to Person 14 were not sustained, as the section protects journalists and their employers, not other witnesses. For Person 14's privilege against self-incrimination, the court found reasonable grounds for objection but, considering interests of justice and new information affecting credibility, required Person 14 to answer the second question about communication with a journalist.

Jurisdiction
Australia
Judgment Date
09 February 2022
Procedural Posture
Evidentiary Rulings in Civil Proceeding / Interlocutory Hearing During Trial
Outcome
Evidentiary rulings delivered
Legal Topics
['privilege' 'self Incrimination' 'journalist Privilege' 'credibility']
['evidence Law'] ['privilege' 'self Incrimination' 'journalist Privilege' 'credibility']

Case Brief

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Procedural Posture

Evidentiary Rulings in Civil Proceeding / Interlocutory Hearing During Trial

Legal Issues

  1. 1 ['Whether a privileged document used by a witness to refresh memory must be produced' 'Interpretation and application of journalist privilege under s 126K(1) of Evidence Act 1995 (Cth)' "Court's discretion under s 128 Evidence Act to require a witness to answer questions despite privilege against self-incrimination"]

Ratio Decidendi

Person 41's reference to reading his witness statement to refresh memory was sufficient for production to the applicant, resulting in waiver of privilege. Objections to relevance, credibility, and journalist privilege under s 126K(1) regarding questions to Person 14 were not sustained, as the section protects journalists and their employers, not other witnesses. For Person 14's privilege against self-incrimination, the court found reasonable grounds for objection but, considering interests of justice and new information affecting credibility, required Person 14 to answer the second question about communication with a journalist.

Court Disposition

Evidentiary rulings delivered

Orders

  • ["Person 41's statement to be produced to applicant" 'Objections to cross-examination questions to Person 14 overruled; in one instance witness not required to give evidence, in the second witness required to answer question']