Roberts-Smith v Fairfax Media Publications Pty Limited

Introduction 1 There are two Interlocutory applications before the Court. The first Interlocutory application is an application by the respondents for leave to issue a Subpoena to give evidence to Person 56. This application is opposed by the applicant. The second Interlocutory application is an application by Person 56 to set aside the Subpoena to give evidence should leave be granted. As filed, Person 56's application sought orders that he be given leave to be heard on the respondents' application for leave to issue a Subpoena to give evidence and that the respondents' application be refused. The basis of Person 56's application, according to his evidence, is the serious effect an obligation to give evidence would have on his mental health and his demanding personal circumstances. I suggested to the parties that Person 56's application was more appropriately dealt with as an application to set aside the Subpoena to give evidence should leave be granted. Neither party nor Person 56 objected to that approach. Clearly, the second application need not be considered if the first application is refused. Nevertheless, in circumstances in which the trial is proceeding and the respondents are in the course of their case, it was convenient to hear the two applications together, rather than face the possibility of two hearings. 2 The background to the respondents' application is as follows. On 13 February 2019, the Court made orders in relation to the service of outlines of evidence and the orders included an order that the respondents file and serve their outlines of evidence by 8 May 2019. On 22 May 2019, the parties agreed to vary the timetable to the effect that the respondents' outlines of evidence were due to be served on 31 May 2019. Neither party served an outline of evidence for Person 56. 3 On 15 March 2021, the respondents filed and served an Interlocutory application for leave to issue Subpoenas to give evidence to additional witnesses, including Person 56. The application was supported by an affidavit sworn by Mr Peter Llewellyn Bartlett on 15 March 2021. 4 On 23 April 2021, I ordered that leave to issue a Subpoena to give evidence to Person 56 be refused. In my reasons, Roberts-Smith v Fairfax Media Publications Pty Limited (No 12) [2021] FCA 465, I explained the background to the application. I said (at [2]): … The question of leave to issue a subpoena under r 24.01 of the Federal Court Rules 2011 (Cth) would, in the ordinary case, be dealt with in chambers and, unless the Court specifically requested submissions, without submissions from the parties. The reason the question of leave is being dealt with by way of a formal application and after hearing from the parties, is that in this case the Court made an order for the filing and serving of outlines of evidence. The time within which that was to be done has well and truly expired. A further reason for the procedure adopted in this case is that the respondents do not propose to file outlines of evidence with respect to 9 of the 12 persons. 5 Later in those reasons, I explained the reasons I refused the application insofar as it concerned Person 56. I said (at [54]): I have made orders in this case for the exchange of outlines of evidence. The purpose of an outline of evidence is to provide notice of the evidence to be given by the witness (see paragraph 7.2 of Defamation Practice Note (DEF-1)). The absence of an outline of evidence or, as in the case of Persons 24, 40, 41, 42 and 43, what I consider to be a sufficient equivalent, means that the applicant will not be given any notice of the evidence Person 56 may give. Indeed, as I understand it, the respondents do not know what evidence Person 56 is likely to give. It would be unfair to the applicant to allow the respondents to call Person 56 as a witness in those circumstances and I refuse the application insofar as it relates to Person 56. 6 The respondents' present Interlocutory application is dated 28 October 2021. It is supported by an affidavit of Mr Bartlett sworn on 28 October 2021 (Bartlett No 1). A signed statement of Person 56 consisting of 24 paragraphs is annexed to the affidavit. Following the application, the applicant issued a Notice to produce documents. The applicant challenged a claim by the respondents for legal professional privilege in relation to a number of documents. That challenge was referred to another judge because of the possibility that the judge called upon to resolve the dispute would be required to examine the documents the subject of the claim for legal professional privilege. In Roberts-Smith v Fairfax Media Publications Pty Limited (No 25) [2021] FCA 1558 (Roberts-Smith (No 25)), Abraham J held that legal professional privilege had been waived with respect to various documents and the applicant was granted access to those documents. 7 The respondents produced the documents. By letter dated 2 February 2022, the respondents produced eight documents, or categories of documents, in response to a Notice to produce issued by the applicant on 23 December 2021. Those documents were tendered by the applicant on the present application together with certain letters which had passed between the solicitors for the respective parties. In addition, the applicant relied on an affidavit of Mr Paul Victor Svilans sworn on 21 January 2022. 8 The respondents filed a further affidavit affirmed by Mr Bartlett on 14 January 2022 (Bartlett No 2). At the hearing before me, the applicant sought leave to cross-examine Mr Bartlett. I granted leave to cross-examine and I have taken Mr Bartlett's evidence in cross-examination into account. 9 The background to Person 56's application is as follows. The Interlocutory application brought by Person 56 is dated 1 February 2022. It is supported by two affidavits of Ms Amy Dell Campbell Barber who is Person 56's solicitor. One of the affidavits is of a formal nature and need not be further mentioned. The other affidavit has attached to it a report from Ms Ciara Mitchell, psychologist of "Critical Components". The report is undated, but it is clear that it was provided between 11 January 2022 and 1 February 2022. The first paragraph of the report indicates its broad purpose: As per your request dated 11th January 2022, I am writing this report to accompany your submission to the civil defamation trial brought by Ben Roberts-Smith against Fairfax Media, on behalf of [REDACTED], outlining the negative impact giving evidence at this trial would have on his mental health. 10 The respondents opposed the application to set aside the Subpoena if leave to issue the Subpoena is granted. They issued a Subpoena to produce documents to the Proper Officer of Critical Components WA Pty Ltd trading as Critical Components in which they sought production of the following documents: 1. All documents recording or referring to the "request dated 11 January 2022" referred to in paragraph 1 of the Report. 2. All documents recording or referring to instructions provided by Person 56 (or any lawyer or other person acting on his behalf) to Ms Mitchell concerning the preparation or content of the Report. 3. All documents provided by Person 56 (or any lawyer or other person acting on his behalf) to Ms Mitchell in connection with the preparation of the Report. 4. All documents recording or referring to a communication from Person 56 (or any lawyer or other person acting on his behalf) to Ms Mitchell in which Ms Mitchell was told words to the effect that the Report was to "accompany [Person 56's] submission to the civil defamation trial brought by Ben Roberts-Smith against Fairfax Media, on behalf of [Person 56], outlining the negative impact giving evidence at this trial would have on his mental health". 5. All drafts of the Report. 6. All working notes drafted by Ms Mitchell while preparing the Report. 7. All documents recording the "formal recognition" of P56's mental health conditions by DVA, referred to in paragraph 2 of the Report. 8. All documents comprising Ms Mitchell's clinical file for Person 56, including but not limited to: a. any notes of the "sessions" described at paragraph 3 of the Report; b. the "collateral file information" referred to at paragraph 3 and on the last page of the Report; c. any notes or records of the "extensive contact with [Person 56]" referred to on page 2 of the Report; d. any notes or records referring to the "legal proceedings" or "legal events" referred to on page 2 of the Report; e. any notes or records of the "direct engagement with the client" referred to on the last of the Report; f. any notes or records of "historic engagement with relevant key stakeholders" referred to on the last page of the Report. A small bundle of papers was produced in response to the Subpoena to produce documents and tendered by the respondents at the hearing. 11 Person 56 applied for a non-disclosure order with respect to certain matters in the report relating to his mental health. I made an order at the hearing pursuant to s 37AH of the Federal Court of Australia Act 1976 (Cth) as follows: 5. … there be no disclosure until further order of the three primary health conditions of Person 56, the date of onset of Person 56's primary health conditions and the nature of the treatment of Person 56 at the direction of Ms Mitchell. This order is made having regard to the necessity to prevent prejudice to the proper administration of justice. The information which is relevant to Person 56's application and which is the subject of the non-disclosure order is set out in a Confidential Annexure to these reasons.