FEDERAL COURT OF AUSTRALIA

Roberts-Smith v Fairfax Media Publications Pty Limited [2019] FCA 36

ORDERS

THE COURT ORDERS THAT:

1.    The respondents bring in minutes of order reflecting the conclusions expressed in these reasons.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    There are three defamation proceedings in the Court involving Mr Ben Roberts-Smith as applicant, and various media companies and journalists as respondents. The media companies differ in the case of each proceeding, but the three journalists are the same in each proceeding. These reasons address an issue (raised by interlocutory application) which is common to all three proceedings. The issue is whether a suppression order should be made under s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Act) in relation to the identity of a proposed witness in the proceedings. The order is sought by the respondents and is opposed by the applicant.

2    The applicant is a former soldier and member of the Special Air Service Regiment (SASR) who was deployed on multiple occasions to Afghanistan. In 2018, a number of newspaper articles were published dealing with the applicant’s conduct and activities as a member of the SASR. Those matters are not of present relevance. What is of present relevance are suggestions that the applicant may have committed an act of domestic violence. In these proceedings, and taking proceeding NSD 1486 of 2018 as a sufficient example, the alleged suggestion of domestic violence are the fifth and sixth matters complained of in the Statement of Claim and the articles are said to give rise to the following imputations, among others:

(a)    The Applicant committed an act of domestic violence against a woman in the Hotel Realm in Canberra;

(b)    The Applicant is a hypocrite who publicly supported Rosie Batty, a domestic violence campaigner, when in private he abused a woman;

3    In their Defence, the respondents plead, among other pleas, justification (s 25 of the Defamation Act 2005 (NSW) (Defamation Act)) and contextual truth (s 26 of the Defamation Act). They refer to a number of persons by a designated number in their Particulars of Truth. Persons 1 to 16 relate to the allegations concerning the applicant’s conduct and activities as a member of the SASR. Person 17 relates to an alleged domestic violence incident. Persons 1 to 17 are named in the confidential annexure to the Defence to the Statement of Claim.

4    On 16 November 2018, I made an interim order under s 37AI of the Act as follows:

5.    Order on an interim basis pursuant to s 37AI of the Act, and on the grounds referred to in s 37AG(1)(a) and (c) of the Act, there is to be no disclosure, by publication or otherwise, of information that identifies, or tends to identify, the person referred to in the Confidential Annexure to the Defence to Statement of Claim as Person 17.

 6.    Order 5 does not prevent disclosures to and between the following people:

   a.    Judges of this Court;

   b.    necessary Court staff (including transcription service providers);

   c.    the parties;

d.    legal representatives of the parties instructed in these proceedings, including in-house counsel of the first respondent;

e.    Person 17 and any legal representatives for Person 17 instructed in relation to these proceedings;

   f.    Witnesses or proposed witnesses in the proceedings; and

g.    judicial officers and necessary staff of any court hearing an appeal from any decision made in the course of this proceeding.

 7.    Order 5 applies until further order.

5    The effect of the respondents’ present application is that these orders be made permanent in the sense that they apply until further order.

6    In support of their application, the respondents relied on an affidavit of Person 17, an affidavit of Mr Dean Levitan, who is a member of the firm of solicitors representing the respondents, an affidavit of one “B”, and an expert’s report of a Mr Konrad Buczynski. The applicant did not adduce any evidence.

Legislative Provisions, the Grounds of the Application and Principles

7    Part VAA of the Act gives the Court power to make suppression and non-publication orders. Section 37AA of the Act defines these types of orders as follows:

suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise).

non-publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).

8    Section 37AE of the Act provides as follows:

In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

9    Section 37AF of the Act relevantly provides as follows:

(1)    The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

(a)    information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

  (b)    …

(2)    The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

10    Section 37AG of the Act relevantly provides as follows:

(1)    The Court may make a suppression order or non-publication order on one or more of the following grounds:

(a)    the order is necessary to prevent prejudice to the proper administration of justice;

   (b)    …

   (c)    the order is necessary to protect the safety of any person;

   (d)    …

(2)    A suppression order or non-publication order must specify the ground or grounds on which the order is made.

11    As can be seen from the interim order, the order sought in this case is a suppression order. The order is sought on the basis that Person 17 will be a witness in the proceedings and the grounds relied on are s 37AG(1)(c) and, in the alternative, s 37AG(1)(a) of the Act.

12    The order is sought until further order. I raised with the parties during the course of submissions the question of whether it was relevant for me to consider on this application and at this stage what order (if any) should be in place at the time of trial. The respondents, as I understood them, suggested that that was a matter to be dealt with as and when relevant circumstances arose. The applicant made a strong submission that there would be no justification for suppressing the identity of Person 17 at the trial. He submitted that the case would not fall within any of the traditional categories where the Court might do that (e.g., blackmail, child sexual offences). Other than making that submission, the applicant did not suggest that the issue of what might be done at trial affected the position at this stage. I will proceed on the same basis as the parties did, that is, whatever is done now is capable of being reconsidered as the matters proceed.

13    The respondents’ application is based primarily upon the contention that a suppression order is necessary to protect the safety of persons (i.e., s 37AG(1)(c) of the Act). As I understood their submissions, “safety” meant the physical safety of persons. There was reference in the respondents’ written submissions to Person 17 suffering mental harm in terms of disabling levels of anxiety. There was a brief reference by the respondents’ counsel towards the end of his submissions to mental harm, but the submission was not developed in any detail. It seems to me that even assuming mental harm is sufficient, it is not made out in this case. No medical evidence was put forward as to the potential of mental harm to Person 17 or her family and, as I have said, the submission was not developed in any detail. In the circumstances, I will restrict my consideration of the application to the potential of physical harm.

14    The respondents put their application in the alternative on the basis that an order is necessary to prevent prejudice to the proper administration of justice. The argument was that Person 17 faced intimidation from persons who believed that she is to be a witness in the case. Such intimidation, it was submitted, would “in all likelihood” constitute a contempt of court.

15    I should make it clear that it is not suggested that the applicant is in any way responsible for the statements or acts which are the subject of the evidence.

16    There is an issue in this application concerning the proper construction of s 37AG(1)(c) of the Act. The issue is whether, to obtain an order, it is necessary to show that, absent an order being made, it would be probable that the person in question will suffer harm, or whether all the section requires is for the Court to be satisfied on the balance of probabilities that the order sought is necessary to protect the person’s safety. As Bathurst CJ (with whom McColl JA and McClellan CJ at CL agreed) noted in D1 v P1 [2012] NSWCA 314 (at [49]), the first construction may be put in this way:

… is it a precondition to the operation of the section that as a matter of probability the person in question would suffer harm if an order was not made?

The alternative construction may be put in this way (at [51]):

… On this construction proof of the probability of harm is not a precondition. The necessity for such an order will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that the order is necessary even if the risk is a possibility as opposed to a probability.

17    In my opinion, the second construction is the correct one. It enables the Court to apply the criteria in a way which will achieve its purpose and is consistent with the law’s general approach to risk of considering not only the possibility or probability of an event occurring, but also the likely extent of the consequences if it does. It would seem incongruous to have a test which founds an order where it is probable an assault will occur, but not in a case where there is a 49% risk of a death occurring.

18    In Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311, the Court of Appeal of the Supreme Court of New South Wales considered ss 6 and 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW). These sections are in similar terms to ss 37AE and 37AG of the Act. Bathurst CJ and McColl JA made the following observations concerning the meaning of the word “necessary” (at [28], [29] and [31]):

The word “necessary” was adopted as the test for making a suppression order on the recommendation of the NSW Law Reform Commission: see New South Wales Law Reform Commission, Report 100, Contempt by Publication (June 2003) at par 10.20; see also New South Wales Law Reform Commission, Discussion Paper 43, Contempt by Publication (July 2000) at chapter 10, where the principal discussion leading to the recommendation in the final Report appears. Similar language appears in s 50 of the Federal Court of Australia Act and s 4(2) and s 11 of the Contempt of Court Act 1981 (UK). It was the test applied by courts with an inherent jurisdiction to make nonpublication orders: John Fairfax Publications Pty Ltd v District Court of New South Wales at [38].

A number of authorities are cited in the Discussion Paper (at pars [10.16]–[10.18]) as authority for the proposition that the test for making a suppression or non-publication order should be that it be “necessary”. Of those authorities, the clearest statement, and that which appears to underlie the form of s 8, appears in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476–477 (McHugh JA; Glass JA agreeing):

“The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient.” (Emphasis added)

John Fairfax & Sons Ltd v Police Tribunal of New South Wales was the principal authority on the subject of making non-publication orders in New South Wales prior to the enactment of the CSNPO Act: John Fairfax Publications Pty Ltd v District Court of New South Wales at [39]. French CJ referred to this passage with approval in Hogan v Hinch at [21].

…

Significantly, an order is not “necessary” if it appears to the court “to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some ‘balancing exercise’, the order appears to have one or more of those characteristics”: Hogan v Australian Crime Commission at [31]. Further, it is not a sufficient basis for such an order that the information is inherently confidential as distinct from personal or commercial information the value of which as an asset would be seriously compromised by disclosure: Hogan v Australian Crime Commission at [38].

The Evidence

19    Person 17’s evidence is directed to events which have occurred since the articles were published and includes reference to a number of social media posts. Mr Buczynski’s report contains his views as an expert as to the nature and extent of the threats which have been made.

20    Ms Yumi Stynes was a presenter on Channel 10’s television program, The Circle, in 2012 and on 27 February 2012, she made comments about the applicant which Mr Levitan described as questioning the applicant’s intelligence. Thereafter, Ms Stynes was strongly attacked on the internet. The evidence of B relates to these attacks as does, in part at least, the evidence of Mr Levitan.

21    Mr Levitan’s evidence also identifies acts and events directed to or about Mr Chris Masters and Mr Nick McKenzie, both of whom are respondents to these proceedings. Mr Levitan also produces material posted on-line about Person 17.

22    In essence, the respondents contend that many Australians see the applicant as a war hero. A reasonable number react strongly to criticism of the applicant. Person 17 and the respondents are perceived as having unfairly criticised the applicant. Although the events involving Ms Stynes occurred over five years ago, they are indicative of the response of some persons to criticism of the applicant.

23    I turn now to summarise briefly the evidence of the various witnesses.

Person 17

24    Person 17 is concerned for her safety and that of her family. Person 17 states that in early June and July 2018, she became aware of the newspaper articles that are the subject of the applicant’s defamation proceedings. Person 17’s husband was contacted by an unidentified person on 9 July 2018. On 15 July 2018, Person 17 received an anonymous email criticising her from a Gmail account.

25    Person 17 has read a number of media reports that say that witnesses had received death threats from SASR members in relation to giving evidence against the applicant. Person 17, having read the reports, is fearful that if her name becomes public, she will be targeted by people within the SASR and the military generally who support the applicant. Person 17 is aware of the skills that SASR operatives have that enable them to, for example, monitor phone calls and emails, and track individuals.

26    From the date when the initial article, which is the subject of the proceedings, was published, Person 17 has noticed that there are a lot vitriolic and concerning comments made on the internet by people supporting the applicant. Person 17 also noticed that on or around 25 September 2018, an article was published on-line by the Australian newspaper which stated that the investigation into the police complaint had been dropped as there was insufficient evidence to proceed with any charge. Person 17 states that when articles discussing the domestic violence allegation were published, she saw that they were then linked to various pages on Facebook and other internet forums which allowed users to make comments.

27    Person 17 produced photographs of a number of Facebook pages which she took. The following is a summary of what Person 17 described as concerning comments:

(a)    … photograph I took of a Facebook page in which the user Jake Payne states inter alia ‘AND A POX times 3 over on the lousy, filthy accusers and their families .....Shame, Shame, Shame on you’.

(b)    … photograph I took of a Facebook page in which the user James Basham states inter alia ‘FALSE ALLEGATIONS IN DV CASES MUST BE IDENTIFIED AND PUNISHED’.

(c)    … photograph I took of a Facebook page in which user Sean Flanagan states ‘They should be naming the woman now. She needs to live with the consequences of the false accusations’.

(d)    … photograph I took of a Facebook page in which user Olde Cranky Bastad states ‘Why isn't the skank on charges for wasting tax payers money’.

(e)    … screenshot I took of a Facebook page in which the user William Hart states ‘This almost justifies a touch of violence against some of the low life leftards in the media fo (sic) the slur they intended. Shouldn't someone have their socks sued off for this?’

(f)    … photograph I took of a Facebook page in which the user Matt N Narelle states ‘Sue them then kill them’.

(g)    … photograph I took of a Facebook page which shows the user James Miller has posted a picture of an actor preparing a gun to be shot along with the comment ‘Me when anyone insults our prophet Ben Roberts Smith’.

(h)    … screenshot I took of a Facebook page which shows the user Des Hansson states ‘First a fair trial. Then shootem.’'

(i)    … screenshot I took of the michaelsmithnews.com website which the user serenity747 states inter alia ‘The people behind this smear should be exposed and hung drawn and quartered, and hounded out of what ever position they hold, they are nothing more than cowards...’.

(j)    … photograph I took of a Facebook page which shows the user Victor Young states ‘money grabbing slag’.

28    Person 17 said that she was particularly disturbed by references such as “Sue them then kill them” and “Why isn’t the skank on charges for wasting tax payers money”, and “FALSE ALLEGATIONS IN DV CASES MUST BE IDENTIFIED AND PUNISHED” as well as suggestions of acts of physical violence. Person 17 said that her reasoning was that she felt that there were men out there who felt that they had been wrongly accused of domestic violence and were angry because they thought that she had done the same thing to a man who they really admired. She was also fearful as there seemed to be a substantial public reaction of wanting to punish and gaol someone who some members of the public assumed is lying and trying to bring down a hero.

29    Person 17 refers to her personal circumstances. There is no need for me to set those out. Person 17 says that the prospect of her identity being revealed was making her extremely anxious to the point where she suffered panic attacks. Those attacks were triggered particularly when she saw new reports in the media and social media comments about the domestic violence incident or threats being made to witnesses. She states that she does not sleep well and has to take prescription medication to make her sleep. She feels emotionally fragile a lot of the time. She cries most days and is anxious about what is going to happen next. She said that she often feels paranoid as though people are looking at her and talking about her. She is concerned that if her name and identity is revealed, she will be subjected to harassment and vitriol by people who support the applicant and think that she is just a lying woman trying to bring down a war hero. That makes her feel physically and mentally unsafe. She is concerned that if her name is revealed, she will become too scared to leave her house and will not be able to function day-to-day. She is concerned that people will approach her, write her letters, telephone her constantly and otherwise try to contact her. She is concerned that she will isolate herself and not go out in public.

30    In response, the applicant’s counsel went through the Facebook messages and submitted with considerable force in some cases, that the message, whilst abusive, did not contain serious threats.

The Incident Involving Ms Yumi Stynes

31    This incident involving Ms Yumi Stynes is dealt with in Mr Levitan’s evidence and the evidence of B. In Mr Levitan’s evidence he refers to articles appearing on the internet in February and March 2012. The articles are highly abusive and some of them are threatening.

32    The evidence of B is to the effect that Ms Stynes received threats of violence and vitriolic comments from members of the public after her appearance on The Circle on 27 February 2012. There was a strong social media campaign against her and it was at its most intense between approximately 27 February 2012 and 14 March 2012. B refers to a number of Facebook posts in the first part of 2012. It seems that Channel 10 had employees monitoring the telephone calls and physical mail that the station was receiving in relation to Ms Stynes. It seems that the channel received at least one death threat against Ms Stynes which they then reported to the police and that the police told the channel that they considered the death threat to be credible enough that they had arrested and laid charges against the individual who made the threat. There is no further information as to what action, if any, the police took against the individual concerned. During the first week of March 2012, there was dog excrement sent in the mail to Channel 10 and addressed to Ms Stynes. Channel 10 arranged for a security consultant to review the security of Ms Stynes’ home.

Mr Konrad Buczynski

33    Mr Buczynski is a security risk consultant working for Askew & Associates Pty Ltd. He is a Certified Practising Risk Manager and Risk Registered Security Professional. His area of practice and expertise is in assessing security risks and providing advice to mitigate circumstances that threaten the safety of individuals and the safety of assets. He identifies the following as the types of individuals to whom he has provided advice and the situations in which such advice has been provided:

a.    Personal assessments for members of the Board and key Executives of a company ranked within the ASX top 100, in relation to their involvement in challenging and prolonged industrial relations matters.

b.    Personal, workplace and social environment assessments for individuals involved in giving evidence in high-profile legal proceedings against defendants known for their criminal associations, including ongoing liaison with a special police taskforce set up in relation to the matter.

c.    A collective assessment for the Board of one of Australia’s largest telecommunications companies, in relation to the conduct of its Annual General Meeting and the safety of its participants. I have provided such assessments to other entities on multiple occasions.

d.    Personal assessments for senior company executives and employees involved in a project that continues to draw broad community opposition and protest via social media and direct action.

e.    Risk assessments for one of Australia’s wealthiest individuals, and members of their family, in relation to their high-profile residence and criminal incidents experienced at the site.

34    Mr Buczynski assesses the potential for harm to Person 17 should her identity be publicly disclosed in relation to the proceeding by assessing the level of inherent risk, that is to say, the current circumstances, and then by conducting a comparative assessment of risk which assumes that her identity is revealed. The methodology he uses in assessing risk to the safety of a person is defined within Standards Australia’s Handbook 167:2006 – Security risk management. Mr Buczynski provides a summary of his findings and it is as follows:

In summary, on the basis of the information provided to me and the assumptions I have made, in my opinion there is an increased risk to the safety of Person 17 in the event that her identity is publicly disclosed.

I have assessed the risk to Person 17’s safety as follows:

a.    the person at risk of harm is Person 17 (the asset);

b.    two Threat Acts were assessed as most relevant to the scope of the assessment, which considers Instructions issued - these include assault and homicide;

c.    the risk control that was considered as part of the assessment was her current level of anonymity;

d.    the aforementioned Threat Acts gave rise to the identification of two related risks;

e.    in the case of the risk of ‘assault causing injury’, the level of anonymity presently afforded to Person 17 is considered key to retaining a lower likelihood of the risk occurring, resulting in a MEDIUM level of current risk - if her identity were to become widely known the level of risk would increase to HIGH; and

f.    in the case of homicide, the risk rating is assessed to be MEDIUM should her identity continue to be protected – this increases to HIGH if anonymity were to be removed.

35    The applicant objected to the tender of Mr Buczynski’s report on two grounds which, having regard to the way the arguments were presented, are related. The applicant submitted that Mr Buczynski had not revealed his reasoning in his report and the matters which he addresses are not matters of expertise. The applicant referred to Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [41]–[42]. In particular, the applicant emphasised that a lack of reasoning may point to a lack of any sufficient connection between a numerical or quantitative assessment or estimate (relevant in that case) and relevant specialised knowledge. In the alternative, the applicant submitted that even if the evidence was admissible, it should be accorded little weight. The applicant focused in particular on a number of matters identified in paragraph 20 of Mr Buczynski’s report. In the preceding paragraph in his report, Mr Buczynski identifies information which he considers relevant to the assessment of the risk to the safety of Person 17, and then in paragraph 20, he identifies the specific matters and considerations relevant to this information which he has considered. I do not propose to go through all of the submissions made by the applicant. Three examples will suffice. Mr Buczynski said the following:

b.    In view of the link to the military, issues such as the prevalence of Post-Traumatic Stress Disorder, and its potential to cause ex-serving members to act irrationally, are likely to elevate the threat environment rather than reduce it.

The applicant submitted with force that Mr Buczynski was implying without evidence that veterans were more likely to act irrationally and violently than other members of the community.

36    The applicant referred to subparagraph d which was as follows:

d.    There is potential for individuals promoting currently popular feminist issues, such as the #MeToo movement, to attempt to visibly associate themselves with and support Person 17, should her identity become known (regardless of her wishes for them to become involved). It is possible that such involvement may increase hostility, and thus the level of threat, towards Person 17 by some sections of the community who are critical of the movement, as a consequence.

The applicant submitted that these opinions are pure speculation and that there are different groups in the community who take different approaches to the issue.

37    The applicant referred to subparagraph f which is as follows:

f.    The information relating to the experience of Yumi Stynes is significant because it demonstrates the preparedness of members of the public, including apparent supporters of Ben Roberts-Smith, to contact a person directly who is identified as being critical of him and to make threats of death and serious violence.

It is also important to take into account the fact that the content of the material in the articles and the defence relating to Person 17, by comparison to the subject matter of Ms Stynes’ comments concerning Ben Roberts-Smith, is much more serious. That consideration, taken together with the nature of the reaction to Person 17 to date, further elevate the threat environment.

The applicant submitted that Mr Buczynski’s conclusion that the matters concerning Person 17 are far more serious than the subject matter of Ms Stynes’ comments concerning the applicant is a matter of opinion, not based on any expertise.

38    There is force in some of the applicant’s submissions, but I considered, and still consider, that the report was admissible and that the matters raised by the applicant are relevant to weight.

Other Evidence

39    The balance of Mr Levitan’s affidavit is devoted to the reaction of certain members of the public to two of the respondents, Mr Masters and Mr McKenzie, the respondents and Person 17.

ConclusionS

40    I have considered the evidence carefully, including the various social media posts. It is true, as the applicant submitted, that some of the social media posts do no more than express a point of view, while others are abusive rather than threatening, or abusive and threatening. I take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice (s 37AE of the Act). Nevertheless, I am satisfied that, at this stage, the order sought should be made on the basis that it is necessary to protect the safety of Person 17 (s 37AG(1)(c) of the Act). In reaching that conclusion, I have had regard to the combined effect of the evidence, including, in particular, Person 17’s evidence, the Facebook posts and the evidence of the incident involving Ms Stynes and its aftermath. Furthermore, I consider that there is a sufficient risk of threats to, or intimidation of, Person 17 as a proposed witness in the proceedings should her identity be revealed, to justify the order by reference to s 37AG(1)(a) of the Act.

41    I will hear the parties as to the appropriate orders.

Associate:    

Dated:    25 January 2019

SCHEDULE OF PARTIES