Roberts-Smith v Fairfax Media Publications Pty Ltd [2025] FCA 414

Paragraphs 1 to 4 of the subpoena are in these terms:
1. All letters, emails, text messages, WhatsApp or Signal messages, notes of conversations or other documents by which you provided any information to Nick McKenzie in relation to the Appellant in the period between 1 August 2020 and 27 July 2022.
2. All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and Danielle Scott in relation to the Appellant in the period between 1 August 2020 and 27 July 2022.
3. All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and Nick McKenzie, or any person acting on his behalf, in relation to the Appellant in the period between 1 August 2020 and 27 July 2022.
4. All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and Nick McKenzie, or any person acting on his behalf, in relation to these proceedings from 21 March 2025 to date.
Paragraphs 1 to 3 catch any communications which merely relate to the appellant. For the reasons I have already given in relation to the notice to produce to Mr McKenzie, these paragraphs are far too broad and must be set aside. As I have also explained, I will not permit the subpoena machinery to be used to obtain documents generated in 2025 so paragraph 4 will be set aside.
This subpoena will be set aside.

Federal Court of Australia|2025-04-24|Before: Ms J, Perram J

For the reasons I have given in relation to paragraph 6 of the notice to produce to Mr McKenzie this subpoena will be set aside.

Paragraphs 1 to 3 are in these terms:
1. All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you, or any person acting on your behalf, and Nick McKenzie, or any person acting on his behalf, in relation to the Appellant in the period between 1 August 2020 and 27 July 2022.
2. All letters, emails, text messages, WhatsApp or Signal messages, notes of conversations or other documents exchanged between you, or any person acting on your behalf, and Nick McKenzie, or any person acting on his behalf from 21 March 2025 to date in relation to an audio recording of a conversation between you and Nick McKenzie.
3. All letters, emails, text messages, WhatsApp or Signal messages, notes of conversations or other documents exchanged between you, or any person acting on your behalf, and Linton Besser, or any other employee of the Australian Broadcasting Corporation from 21 March 2025 to date concerning an audio recording of a conversation between you and Nick McKenzie.
The four issues raised on the re-opening application do not concern communications involving Person 17. The re-opening application is concerned with communications between Mr McKenzie, on the one hand, and Ms Roberts and Ms Scott, on the other, which resulted in further communication between Mr McKenzie and MinterEllison. The subpoena will be set aside.

Paragraphs 1 to 4 of the subpoena are in these terms:
1. All letters, emails, text messages, WhatsApp or Signal messages, notes of conversations or other documents by which you provided any information to Nick McKenzie in relation to the Appellant in the period between 1 August 2020 and 27 July 2022.
2. All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and Danielle Scott in relation to the Appellant in the period between 1 August 2020 and 27 July 2022.
3. All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and Nick McKenzie, or any person acting on his behalf, in relation to the Appellant in the period between 1 August 2020 and 27 July 2022.
4. All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and Nick McKenzie, or any person acting on his behalf, in relation to these proceedings from 21 March 2025 to date.
Paragraphs 1 to 3 catch any communications which merely relate to the appellant. For the reasons I have already given in relation to the notice to produce to Mr McKenzie, these paragraphs are far too broad and must be set aside. As I have also explained, I will not permit the subpoena machinery to be used to obtain documents generated in 2025 so paragraph 4 will be set aside.
This subpoena will be set aside.

This subpoena is relevantly in the same terms as the subpoena to Ms Roberts and will be set aside for the same reasons.

On 24 April 2025 I made orders giving effect to these conclusions in the following terms:

(1) In respect of the Notice to Produce dated 16 April 2025 and issued to the Second Respondent by the Appellant,

(a) paragraphs 2 to 3 and 5 to 10 be set aside;

(b) paragraph 1 be taken to have a date range of 1 August 2020 to 30 April 2021; and

(c) paragraph 4 be taken to have a date range of 1 August 2020 to 31 May 2021.

(2) In respect of the Subpoena to Produce Documents filed on 17 April 2025 and issued to Mr Dean Levitan at the request of the Appellant, paragraphs 1 to 3 and 5 to 8 be set aside and paragraph 4 be taken to be limited to the date range of 1 August 2020 to 31 May 2021.

(3) In respect of the Subpoena to Produce Documents filed on 17 April 2025 and issued to Mr Peter Bartlett at the request of the Appellant, paragraphs 1 to 3 and 5 to 8 be set aside and paragraph 4 be taken to be limited to the date range of 1 August 2020 to 31 May 2021.

(4) The Subpoena to Produce Documents filed on 17 April 2025 and issued to the Australian Broadcasting Commission at the request of the Appellant be set aside.

(5) The Subpoena to Produce Documents filed on 17 April 2025 and issued to Person 17 at the request of the Appellant be set aside.

(6) The Subpoena to Produce Documents filed on 17 April 2025 and issued to Emma Roberts at the request of the Appellant be set aside.

(7) The Subpoena to Produce Documents filed on 17 April 2025 and issued to Danielle Scott at the request of the Appellant be set aside.

(8) The time for compliance with the paragraphs of the subpoenas and the notice to produce referred to in Orders 1, 2 and 3 that have not been set aside be amended to 5 pm on Monday 28 April 2025 with liberty to apply.

(9) The costs of the Respondents' Interlocutory Application lodged on 22 April 2025 be costs in the cause.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.

In advance of next week's hearing, the appellant sought the issue of several subpoenas for the production of documents to third parties and a notice to produce to Mr McKenzie himself. The respondents now seek to set the subpoenas and the notice to produce aside. They do so on two bases: (a) that they do not serve a legitimate forensic purpose and (b) that they are oppressive.
The subpoenas and the notice to produce will not serve a legitimate forensic purpose if they seek the production of documents which do not have 'apparent relevance' to the issues in the case. A document will have 'apparent relevance' if it 'could reasonably be expected to throw light on some of the issues in the proceedings': Seven Network (Operations) Ltd v Fairfax Media Publications Pty Ltd [2023] FCAFC 185 at [35], [37] and [39] per Wheelahan, Anderson and Jackman JJ. On the other hand, the machinery of subpoenas is not to be utilised to find out facts, matters or circumstances which might enable a party to advance a case of which it has no present knowledge: Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564; 55 WN (NSW) 215 at 575. This is sometimes expressed as a prohibition of fishing expeditions.
These principles require the identification of the issues in the relevant proceeding. I have outlined the four issues above.
As a result of timetabling orders made in respect of the appellant's application to re-open, the respondents filed an affidavit of Mr McKenzie which sets out his evidence about the recording. Whilst there are some minor disagreements about the precise wording of the various transcripts of the recording, it does not seem to be in dispute that Mr McKenzie did say words to the effect of those attributed to him. In addition to the recording deposed to by Ms Allen, Mr McKenzie's affidavit also exhibited to it a number of documents including two emails sent by him to the respondents' solicitors dated 12 March 2021 and 22 March 2021.
During the course of the hearing of the present application, Senior Counsel for the appellant identified the communications to which he said Mr McKenzie had obtained access and which he submitted were privileged (i.e. the issue in (a)). These were as follows:

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