Roberts-Smith v Fairfax Media Publications Pty Limited (No 17) [2021] FCA 764

Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 17) [2021] FCA 764 File numbers: NSD 1485 of 2018 NSD 1486 of 2018 NSD 1487 of 2018

Judgment of: BESANKO J

Date of judgment: 29 June 2021

Catchwords: PRACTICE AND PROCEDURE — defamation proceedings — whether trial should be adjourned — where applicant has closed his case and respondents are due to commence their case — where an outbreak of COVID-19 has resulted in interstate border closures and major restrictions being imposed in New South Wales — where a number of respondents' witnesses do not reside in New South Wales — whether enforcing witnesses' attendance would be a fair and proportionate exercise of Court's powers — where respondents ask that evidence of Afghan witnesses be heard as soon as possible — uncertainty associated with when Afghan witnesses' evidence could be heard — trial adjourned

Legislation: National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) s 38B

Cases cited: Roberts-Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067 Roberts-Smith v Fairfax Media Publications Pty Limited (No 10) [2021] FCA 317; (2021) 151 ACSR 79

Division: General Division

Registry: New South Wales

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 8

Date of hearing: 28 June 2021

Counsel for the Applicant: Mr B McClintock SC with Mr A Moses SC, Mr M Richardson and Mr P Sharp

Solicitor for the Applicant: Mark O'Brien Legal

Counsel for the Respondents: Mr N Owens SC with Ms L Barnett and Mr C Mitchell

Solicitor for the Respondents: MinterEllison

Counsel for the Commonwealth of Australia Ms A Mitchelmore SC with Mr J Edwards and Ms C Ernst

Solicitor for the Commonwealth of Australia Australian Government Solicitor

ORDERS NSD 1485 of 2018

BETWEEN: BEN ROBERTS-SMITH Applicant

AND: FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720) (and others named in the Schedule) First Respondent

NSD 1486 of 2018

BETWEEN: BEN ROBERTS-SMITH Applicant

AND: THE AGE COMPANY PTY LIMITED (ACN 004 262 702) (and others named in the Schedule) First Respondent

NSD 1487 of 2018

BETWEEN: BEN ROBERTS-SMITH Applicant

AND: THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED (ACN 008 394 063) (and others named in the Schedule) First Respondent

order made by: besanko J DATE OF ORDER: 29 June 2021

THE COURT ORDERS THAT:

1. The trial be adjourned for mention to Monday, 19 July 2021 at 9:30 am. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J: 1 This is a ruling by the Court as to whether the trial of three defamation proceedings can proceed or should be adjourned. The background to the ruling is that the applicant has closed his case in-chief and the respondents are due, in the ordinary course, to commence their case, involving as it does pleas of justification and contextual truth: see Roberts-Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067. 2 The respondents propose to call a number of witnesses in support of those pleas. The COVID-19 virus has flared in New South Wales and that has resulted in major restrictions being imposed in this State and, significantly for present purposes, bans on return or self-isolation requirements for those travelling to New South Wales and then seeking to return to their home states or regions. 3 Counsel for the respondents submitted that his witnesses fall into three categories. The first category consists of the soldier witnesses the respondents propose to call. Those witnesses, I am told, or at least a number of them, would be required to travel from places outside New South Wales or Greater Sydney to attend the trial in Sydney and would be required to self-isolate on their return and, in some cases, banned from returning. In my opinion, it would not be a fair or proportionate exercise of the Court's power to enforce the attendance of these witnesses in the circumstances as I have identified them and at this point in time. 4 The second category consists of three witnesses who are relevant to the imputation of domestic violence. Those witnesses are in the same position as the soldier witnesses and I reach the same conclusions with respect to them as I have in the case of the soldier witnesses. 5 The final category consists of the Afghan witnesses who are to give evidence by audio-visual link from Afghanistan: see Roberts-Smith v Fairfax Media Publications Pty Limited (No 10) [2021] FCA 317; (2021) 151 ACSR 79. Although, as I understand it, they are or can be made available to give evidence in the coming days or weeks, there is an initial impediment to them giving evidence, and that is the classification of documents under existing orders made under the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) that the applicant wishes to put to the witnesses in cross-examination over the audio-visual link. As I understand it, there is a reasonable prospect that this impediment could be removed by amendment to the orders in the relatively near future, although the timing remains uncertain. 6 Some days ago and before the present circumstances reached the point they now have, counsel for the respondents indicated that his case would commence with four soldier witnesses. This morning, counsel for the respondents submitted that in view of the deteriorating situation in Afghanistan, the respondents ask that the Afghan witnesses be heard as soon as possible. Whilst I am sympathetic to that consideration, I think there is a good deal of uncertainty associated with when the evidence of the Afghan witnesses could be heard arising from (1) uncertainty as to when the section 38B orders can be amended; (2) the applicant's request for three days between being provided with the documents and the hearing of the evidence; and (3) some uncertainty, perhaps not great, about whether the parties can be physically present in the courtroom during the evidence of the Afghan witnesses. 7 I am not persuaded that a potential stop-start approach to the respondents' case is necessary or desirable. It may be that that becomes unavoidable, but I am not satisfied that that point has yet been reached. I will adjourn the trial at this point. The stay-at-home orders in Sydney are due to expire on Friday, 9 July 2021. Only time will tell whether they expire then or are extended. Of course, the real issue in this context is the bans or self-isolation requirements attending travel to Sydney and when they are removed. In the circumstances, I consider it appropriate to adjourn the trial to a date for mention in three weeks' time with a view, depending on the circumstances, to the trial recommencing a week later. In taking this approach, I am mindful of the substantial logistical arrangements which must be made by the parties and their legal representatives in these proceedings. 8 I will adjourn the trial for mention to 19 July 2021 at 9:30 am. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.

Associate: Dated: 8 July 2021

SCHEDULE OF PARTIES NSD 1485 of 2018

NSD 1486 of 2018

NSD 1487 of 2018 Respondents Second Respondent: NICK MCKENZIE Third Respondent: CHRIS MASTERS Fourth Respondent: DAVID WROE