Roberts-Smith v Fairfax Media Publications Pty Limited (No 27) [2022] FCA 79

Roberts-Smith v Fairfax Media Publications Pty Limited (No 27) [2022] FCA 79

The Subpoena to the medical practice was set aside because it was too wide and sought irrelevant information. The Notices to produce were set aside as the documents had already been discovered or were covered by a valid claim for journalist privilege under s 126K of the Evidence Act 1995 (Cth). The applicant did not establish that Person 17 was a known informant; privilege was not displaced. Issuing the Notices to produce was an abuse of process in these circumstances.

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
07 February 2022
Procedural Posture
Interlocutory Application / Reasons for Judgment on Application to Set Aside Notices to Produce and Subpoena
Outcome
Subpoena to produce and Notices to produce set aside
Legal Topics
Setting Aside Subpoenas, Setting Aside Notices to Produce, Journalist Privilege, Discovery, Abuse of Process
Practice and Procedure Setting Aside Subpoenas Setting Aside Notices to Produce Journalist Privilege Discovery Abuse of Process

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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 / Reasons for Judgment on Application to Set Aside Notices to Produce and Subpoena

Legal Issues

  1. 1 Whether the subpoena and notices to produce should be set aside as too wide or as an abuse of process
  2. 2 Whether journalist privilege under s 126K of the Evidence Act 1995 (Cth) applies to documents sought
  3. 3 Whether Person 17 is a known informant and if privilege is displaced

Ratio Decidendi

The Subpoena to the medical practice was set aside because it was too wide and sought irrelevant information. The Notices to produce were set aside as the documents had already been discovered or were covered by a valid claim for journalist privilege under s 126K of the Evidence Act 1995 (Cth). The applicant did not establish that Person 17 was a known informant; privilege was not displaced. Issuing the Notices to produce was an abuse of process in these circumstances.

Court Disposition

Subpoena to produce and Notices to produce set aside

Orders

  • The Notices to produce dated 1 and 2 July 2021 respectively be set aside.
  • The Subpoena to produce dated 13 July 2021 be set aside.