Consideration
47 It may be readily accepted that if it is established that there is a prima facie case of witnesses having colluded to give inaccurate or false evidence on a matter of significance in proceedings, that conduct could fall within the fraud exception, so as to defeat a claim of privilege. It may also be readily accepted, that the topic on which it is alleged in this application that the collusion occurred, namely, that Person 12 shot a dog, as a result of which he was removed from the rotation, and on that basis he could not have been present at the Darwan and/or Chenartu missions, is capable of being of significance. Although the incident itself does not form part of the pleadings and if correct, in isolation may be considered as side wind, its use to provide Person 12 with an alibi for the Darwan and Chenartu missions, is significant.
48 The issue is whether the respondents have established a prima facie case of fraud. That involves considering the material relied on by the respondents, determining what is admissible evidence, and what, if any, inferences are to be drawn.
49 As explained above, in Propend the majority of the High Court concluded that to establish a prima facie case of fraud or other illegal purpose so as to displace a claim of privilege, it is necessary for the party seeking to do so, to rely on admissible evidence.
50 The foundation of the respondents' submission on this application is the outlines of evidence filed by the applicant in the substantive proceedings, in respect to the applicant and Persons 27, 32, 35 and 39.
51 The applicant contended the outlines are not admissible evidence, which is what is required to displace a claim of privilege on this basis. It was submitted that as a result, this application is premature.
52 This submission directs attention to the status of an outline of evidence.
53 The Defamation Practice Note (DEF-1) in this Court records that "[w]hen evidence-in-chief is to be led orally and outlines of evidence are to be exchanged, the outlines are to provide notice of the evidence to be given by the witness and, without the leave of the Court, are not to be the subject of cross-examination or be tendered as a prior statement of the witness". As Besanko J observed in Roberts Smith v Fairfax Media Publications Pty Limited (No 12) [2021] FCA 465 (Roberts-Smith (No 12)) at [54], "[t]he purpose of an outline of evidence is to provide notice of the evidence to be given by the witness". As accepted by the respondents, the outlines are not the evidence of the witnesses, as that is what is given orally in the hearing. The outlines are not statements of the witnesses, and unlike statements and affidavits, they are not adopted by the witness in advance of the hearing as accurate (either as to the content of any anticipated evidence or as accurately recording what they may have disclosed to a lawyer).
54 This case illustrates that, although one might expect it to be so, it does not necessarily follow that because an outline has been filed, its contents have been approved by the witness. For example, it is apparent that the respondents have filed outlines of evidence from witnesses without having spoken to them, basing the outlines on material they have sourced from elsewhere: see for example Roberts-Smith v Fairfax Media Publications Pty Limited (No 15) [2021] FCA 1461 at [85]-[86]. It can be inferred that the respondents considered that approach available and appropriate given the status and purpose of an outline of evidence. Indeed, in respect to some of the witnesses to be called by the respondents, the trial judge concluded that it was unnecessary to file outlines of evidence as the applicant was sufficiently on notice of the anticipated evidence by other means: Roberts-Smith (No 12) at [54].
55 Moreover, fundamentally concerning is that the respondents base their submission in this application on the outlines of evidence of these witnesses where, in respect to the separate application relating only to Person 27, they submitted that they do not know whether his outline as filed does reflect what is to be his evidence. In respect to Person 27, the respondents put a case of fraud so as to displace privilege, inter alia, on the basis that Person 27 has told the applicant's solicitor that he is not giving evidence in accordance with the outline, but that the outline has been filed by the applicant regardless. That aspect of the respondents' claim of fraud in respect to Person 27 is premised on the respondents establishing a prima facie case that his outline was filed by the applicant knowing that it does not reflect the witness' anticipated evidence: Roberts-Smith (No 33) [2022] FCA 420 at [34].
56 The respondents' submission in reply on this topic, that the outlines are direct evidence of what the witnesses have told the applicant's lawyers will be the evidence they are likely to give in the proceedings, must be considered in that context. Attempting to recast the outline in that manner does not overcome its status as described in [53] above. The respondents' submission that the applicant has said throughout the hearing that the outlines filed by him were prepared with the involvement of the witnesses (in contrast to the respondents' outlines), must also be considered in that context. I note that the outlines of the applicant and Persons 27, 32, 35 and 39, which are relied on by the respondents in this application, are not signed by the witnesses, which is unsurprising given their status in the proceedings.
57 In any event, that submission as to the circumstances in which the outlines were prepared was merely advanced from the bar table, and cannot bear on the admissibility of the outlines. Nor can the objection schedule provided to the respondents (which also appeared to be relied on in their reply submission). More significantly, the respondents' conduct in accepting, as described above, that Person 27's outline may not reflect his anticipated evidence, and indeed by founding a claim of fraud on that basis, is directly inconsistent with their submission in this application that each outline reflects what evidence the witness is to give at trial (or what the witness is said to have told the applicant's lawyers) such as to establish a prima facie case of collusion between them.
58 The outlines of evidence are not evidence in admissible form in this application, such as required to found an application of this nature.
59 Contrary to the respondents' submission, the applicant's contention that this application is premature does not have the effect of requiring the respondents to prove the allegation of collusion. Although at times the applicant's submission did tend to imply that proof of the improper conduct was required, this submission was, in substance, focussed on the requirement that there be an admissible evidentiary basis to the respondents' claim. Similarly, the submission about the application being premature is not about fairness to the witnesses, as implied at times by the applicant, but about the necessity of there being admissible evidence to found the claim. Having an admissible evidentiary basis to found an application is consistent with authority. Plainly, that does not alter that the standard of proof is a prima facie basis to establish the improper conduct. Contrary to the respondents' submission, having an admissible evidentiary basis does not require establishing collusion between the witnesses through cross-examination before privilege can be displaced.
60 As explained above, the outlines of evidence are not admissible in the substantive hearing, unless leave is granted by the trial judge. Leave was granted during the cross-examination of the applicant in respect to this aspect of the topic of Person 12, but only after it had been established that he had carefully read the outline and was satisfied as to its accuracy before instructing his lawyers to serve the document. The applicant was then cross-examined in respect to statements in his outline as to Person 12 and the dog incident. Although, I note that the issue of this alleged collusion was raised by the respondents in opening the case in the substantive hearing, on the transcript provided of the cross-examination on this topic, there does not appear to be any express suggestion of collusion or even any question put to him as to whether he colluded with others on this topic.
61 If Persons 27, 32, 35 and 39 give evidence in the hearing as to Person 12 that is consistent with the anticipated evidence set out in their outlines, the respondents then have evidence on what the witness said occurred. Regardless, if collusion on this topic is an issue at the trial, depending on their evidence, the respondents could also seek leave to cross-examine these witnesses on their outlines in respect to the topic of Person 12, as they had done in respect to the applicant. If the evidence given is different from their outlines, then again, depending on the evidence, the respondents may seek leave to cross-examine them on this aspect of their outline, as they did with the applicant. Whether leave would be granted would be a matter for the trial judge. All this simply illustrates is that, depending on how the evidence unfolds at trial, there may be means to obtain admissible evidence.
62 Moreover, the respondents' reliance on the submission that the applicant is in a position to dispel the claims made but has not, fails to grapple with the fact that the prima facie allegation of fraud must be based on an admissible evidentiary foundation. The respondents' reliance on the observations of Gaudron J in Propend at 547, that a further burden is cast upon a person claiming privilege, does not assist their case. That burden only arises if there is evidence, in admissible form, which raises a prima facie case that the communications were made in furtherance of an illegal or other improper purpose. Similarly, the observations of Santow J in Kang at [37.7], do not advance the respondents' case in this regard. There his Honour observed that:
[c]onsistent with the reasoning in Propend, the standards for establishing reasonable grounds will depend on the circumstances, though must still be sufficient to "give colour to the charge", that is at a prima facie level. Thus if a person challenging privilege is clearly not in a position to lead very much evidence concerning purpose, as where the other party has exclusive access to that evidence, the Court may be satisfied with relatively less evidence.
The limitations on the respondents' capacity to bring forward evidence, cannot be used as a makeweight for the absence of evidence. That does not obviate the need for there to be some evidence, in admissible form.
63 Given there is no admissible evidence to found the claim, it is unnecessary (and inappropriate) to consider whether what is relied on gives rise to the inference contended for.
64 It suffices to briefly address four further submissions made.
65 First, as accepted by the applicant, there is nothing to prevent the respondents bringing another application if, during the hearing, they have evidence in admissible form on which to base it and on which they contend can establish a prima facie case.
66 Second, the respondents placed importance on the fact that no amended outlines have been served, nor has any other notification been given that the witness' evidence on this topic will be different from what is in their outlines. The significance of this fact to the application is unclear. Even if the evidence of the various witnesses is modified in respect to Person 12, the primary submission as to collusion (if there is prima facie evidence of this) is still capable of applying. That is, the witnesses had colluded to give the erroneous account even if that account can no longer be maintained.
67 Third, the respondents, while accepting that cases are fact specific, submitted that Hallinan is very similar to this case. In Hallinan, witnesses proposed to be called by the defence had engaged in a conspiracy to, in effect, give a fake statement. There the court concluded that there was no sufficient overlap between the issues on the application and those to be determined at trial such that prevented the issue of privilege being separately addressed. Although the effect of the alleged collusion is the same, the nature of the evidence in support was different. That was in a criminal prosecution, and the application was decided before the trial commenced. The application for the material was made by the police to enable them to investigate separate criminal activity, but related to original criminal charges. Whether an alleged falsity relied on can be established independently from the conclusions at the trial can only be decided on the evidence at the time an application is brought.
68 Fourth, in so far as the respondents put an alternative submission (referred to at [37] above) that even if the applicant's explanation for saying it was Person 12 who was removed because of the dog incident is true, then his outline and his answer to interrogatories are still false, that submission does not assist the respondents. The submission is said to be based on the fact that the applicant has admitted that he did not have a "recollection" of the events and so it was said to be deliberately deceptive to pretend otherwise. It was also said that the deception was expanded by discussing with (at least) Person 35 the content of the evidence that they would give on this topic. That submission is vastly different to the primary allegation of collusion between the five witnesses (whether directly or indirectly). It does not involve any allegation of knowing collusion with others, but rather is based on the applicant having been deceptive. On the applicant's version alone, it is unclear how it is said that the other witnesses nominated are implicated such that it would establish a fraud or improper conduct. Bearing in mind the notice to produce is directed to obtaining material relating to Persons 27, 32, 35 and 39.