FEDERAL COURT OF AUSTRALIA

Roberts-Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067

ORDERS

THE COURT ORDERS THAT:

1.    The respondents bring in draft minutes of order reflecting the conclusions in these reasons and dealing with any other orders.

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 before the Court. These reasons address an application brought by the respondents in each proceeding. The three proceedings have been heard together during the interlocutory stages of the proceedings because the issues are similar in each proceeding. Mr Ben Roberts-Smith is the applicant in each proceeding and Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe are the individual respondents in each proceeding. Fairfax Media Publications Pty Limited is the first respondent in NSD 1485 of 2018, The Age Company Pty Limited is the first respondent in NSD 1486 of 2018 and The Federal Capital Press of Australia Pty Limited is the first respondent in NSD 1487 of 2018. It is convenient then to address the application in one proceeding as the same result will apply in the case of the applications in the other proceedings.

2    Proceeding NSD 1485 of 2018 was commenced by an Originating application and Statement of Claim filed on 17 August 2018. The respondents filed their Defence on 16 October 2018. In their Defence, the respondents plead a defence of justification (s 25) and a defence of contextual truth (s 26) under the Defamation Act 2005 (NSW). The Defence contains 138 Particulars of Truth and then, in paragraphs 139 to 152, those particulars are linked to the imputations which the applicant alleges arise from the matters complained of.

3    The applicant did not file a reply. A joinder of issue is implied in relation to any allegation of fact in the Defence and each allegation of fact is taken to be denied (r 16.11, Federal Court Rules 2011 (Cth) (the Rules)). The pleadings closed 14 days after the respondents served their Defence (rr 16.12 and 16.33).

4    During 2019, a number of interlocutory steps were undertaken by the parties pursuant to orders made by the Court. Both the applicant and the respondents filed and served outlines of evidence of the witnesses they propose to call. On 5, 10 and 11 April 2019, the applicant filed and served affidavits in chief of the witnesses he proposes to call. The respondents were required to and did file and serve their outlines of evidence by 31 May 2019. The applicant filed and served his outlines of evidence in reply on 11 and 12 July 2019. The names of a number of witnesses are the subject of suppression orders made under s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Act) and each witness is referred to by a designated number.

5    On 9 August 2019, I made an order that the proceeding be listed for trial commencing on Monday, 15 June 2020 with six weeks set aside.

6    On 9 April 2020, I made an order vacating the trial date. A new trial date has not yet been fixed. I delivered reasons for vacating the trial date (Roberts-Smith v Fairfax Media Publications Pty Limited (No 4) [2020] FCA 614). Two matters, which arose after the trial date had been fixed, led to the vacation of the trial date. First, on 31 March 2020, the Attorney-General for the Commonwealth gave notice in writing to the Court and to the parties and their legal representatives that the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act) applied to the proceeding. That followed from, it seems, the fact that the respondents issued and served a subpoena on the Department of Defence which required the production of a large number of documents containing what was said to be national security information. The invocation of the NSI Act at that point meant that the trial could not proceed on 15 June 2020. Secondly, the current pandemic raised an issue as to the mode of trial, that is to say, whether it could and should be conducted in the traditional way as an in-person trial or could be conducted by remote technology and the feasibility at this stage of an in-person trial. There is no need to repeat what I said in my reasons about that matter.

7    On the application for the vacation of the trial date, the applicant put forward evidence that the respondents were continuing to publish matters containing the imputations, or similar imputations, of which he complains in this proceeding and of the harm and damage that continues to cause him. I summarised that evidence in my reasons as follows (at [17]):

The applicant relied on an affidavit of Ms Monica Helen Allen sworn on 20 April 2020 who is a solicitor at the firm acting for the applicant in each of the four proceedings. Her evidence establishes that since the matters complained of, the respondents have published, or caused to be published, numerous articles naming the applicant and repeating in substance, at least part of the allegations which are the subject of these proceedings. A number of those articles are produced by Ms Allen. She states that she is instructed that the ongoing impacts of the publication of the matters complained of on the applicant and his family have been considerably exacerbated by the respondents re-publishing the allegations every few months. The online versions of those new articles often contain links to the matters complained of. Ms Allen is also instructed that over the last 12 months, the suffering of the applicant and his family has increased significantly as a result of the respondents’ continuing conduct. Ms Allen provides six examples. First, Ms Allen is instructed that following publication of a 60 Minutes broadcast and subsequent articles by the respondents in September 2019, one of the applicant’s daughters was told by another student that “Your dad’s a murderer”. Secondly, Ms Allen is instructed that in November 2019, while standing outside the Channel Seven offices in Martin Place, the applicant had a car pull up next to him and the driver point his fingers in a gun shape at the applicant and making shooting sounds — indicating that he was shooting the applicant. Thirdly, Ms Allen is instructed that the applicant has received no public speaking requests at all, whether paid or voluntary, in the past 12 months. Fourthly, Ms Allen is instructed that the applicant has developed severe insomnia. Fifthly, Ms Allen is instructed that each morning the applicant feels anxious and has a sense of dread about what allegations will be made about him by the respondents. Finally, Ms Allen is instructed that until this year, the applicant has always received numerous invitations to attend ANZAC Day services and/or events. Despite being Australia’s most decorated soldier, the applicant, during the period prior to the cancellation of ANZAC Day events this year, did not receive any requests to attend any ANZAC Day services or events for ANZAC Day 2020…

8    The applicant relies on those matters on the present application and I will take them into account. However, it will be clear from what I have already said that unfortunately the vacation of the trial date and the uncertainty associated with a future trial date results from matters beyond the control of either the applicant or the respondents.

9    This then is the setting in which the respondents bring their application. The principal orders sought by the respondents are as follows: (1) leave pursuant to r 16.53 to amend the Defence to add new allegations and to amend existing allegations; (2) an extension of the time fixed by orders of the Court in which to file and serve new outlines of evidence and supplementary outlines of evidence; and (3) suppression orders pursuant to s 37AF of the Act with respect to the identities of witnesses or potential witnesses in relation to whom outlines of evidence have been served. The application for leave to amend the Defence and the application for an extension of time to file new outlines of evidence and supplementary outlines of evidence are linked in that, in the case of a number of amendments, similar considerations apply to the determination of each application.

10    The evidence on the application is as follows. The respondents relied on two affidavits of Mr Peter Bartlett sworn on 15 May 2020 and 29 May 2020 respectively, extracts from the outlines of evidence of Person 11 and Person 35 and a bundle of correspondence consisting of four letters between the solicitors for the parties. They also relied on written submissions dated 27 May 2020. Mr Bartlett is a partner at MinterEllison and he is the lawyer for the respondents in the proceeding. He has provided the explanation for the delay in making the application for leave to amend.

11    The applicant relied on three affidavits sworn by Ms Monica Allen on 3 April 2020, 13 May 2020 and 25 May 2020 respectively. The applicant relies on two sets of written submissions, one filed on 26 May 2020 and the other filed on 1 June 2020. Ms Allen is a senior associate with the firm Mark O’Brien Legal and that firm represents the applicant.

The Application to Amend the Defence

12    The amendments relate to the Particulars of Truth. Not all of the amendments are opposed and I do not need to refer to those amendments which are not opposed.

13    The amendments which are opposed are those contained in particulars (85A) to (85I), (102A), (107), (108), (109), (111(a)), (122A) to (122H) and (125) of the Particulars of Truth. As will be seen, the amendments fall into four classes.

Relevant Principles

14    The issues and submissions raise the relevant principles with respect to an application for leave to amend a pleading and with respect to the extent of particularity required in allegations of serious misconduct raised in a defence of justification in a defamation proceeding.

15    The principles with respect to an application for leave to amend a pleading are well-known. They were discussed by the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon) (at [5], [24], [30], [93], [95], [102], [108], [112] and [114]) and by this Court in Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter of Tamaya Resources Limited (in liq) [2015] FCA 1098 at [127], (on appeal) Tamaya Resources Limited (in liq) v Deloite Touche Tohmatsu (A Firm) [2016] FCAFC 2; (2016) 332 ALR 199 (Tamaya Resources Limited) at [147]–[160]; Caason Investments Pty Ltd v Cao [2015] FCA 94; (2015) 236 FCR 322 (Caason Investments) at [21]; and Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; (2018) 359 ALR 564 at [25]–[30].

16    The first relevant matter is the nature and importance of the amendments to the party applying for them. The nature of the amendments are described below. I accept that the amendments are important to the respondents in terms of their respective defences of justification and contextual truth.

17    The second relevant matter is the extent of the delay and the costs associated with it. As I have said, the pleadings closed 14 days after the respondents served their Defence in October 2018. The proposed amendments were served on the applicant by the respondents on 18 May 2020. The order vacating the trial date was made on 9 April 2020. The respondents accept that if the amendments are allowed, they will have to pay the costs thrown away by the amendments.

18    The third relevant matter is the explanation for the delay in applying for leave to amend. As I have said, in this case the explanation for the delay is provided by the respondents’ solicitor, Mr Bartlett. The importance of an explanation for the delay was emphasised in the joint reasons of Gummow, Hayne, Crennan JJ, Kiefel J (as her Honour then was) and Bell J in Aon (at [103]):

The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.

(Citation omitted.)

19    The applicant raised two points about the respondents’ explanation in this case. First, he points to the fact that the explanation is provided by the respondents’ solicitor and not by the respondents themselves. As the Full Court made clear in Tamaya Resources Limited (at [129]–[133]), the significance of that particular matter depends on the particular circumstances of the case because the adequacy of the explanation itself depends on the circumstance of the case. In the same way, it seems to me, the significance of the fact that the deponent seeking to explain the delay is not cross-examined will depend on the circumstances of the case. A general statement might be more readily accepted in the absence of cross-examination, but at the same time, an absence of cross-examination cannot convert an inadequate explanation into an adequate one. The applicant’s second point is that, in any event, Mr Bartlett has not provided an adequate explanation for the delay. I will address this matter when I address each class of amendments.

20    The fourth relevant matter is the prejudice that might reasonably be assumed to follow from the amendment and that which is shown. As far as prejudice to the applicant if the amendments are allowed is concerned, he relies on the ongoing harm and damage identified above (at [7]) which is undoubtedly a relevant aspect of prejudice (Ketteman v Hansel Properties Ltd [1987] 1 AC 189 at 220 per Lord Griffiths; Aon (joint reasons at [100]–[101])). He also relies on the contention that if the amendments are allowed, the work he has already done in preparing his case will have to be done again from “scratch”. These matters are addressed below when I address each class of amendments. As I will explain, the vacation of the trial date and the uncertainty associated with the fixing of a future trial date is a significant consideration on this application. As was stated in the joint reasons in Aon, “[m]uch may depend upon the point the litigation has reached relative to a trial when the application to amend is made” (at [102]).

21    The fifth relevant matter is the parties’ choices to date in the litigation and the consequences of those matters. The circumstances of this case do not raise this matter as a separate matter from the other relevant matters on the application.

22    The sixth relevant matter is the detriment to other litigants in the court if the amendments are allowed. This consideration is at its most powerful where an amendment will result in the vacation of trial dates which might have otherwise been given to other litigants. That is not this case and neither the applicant nor the respondents suggested that this matter was relevant.

23    The final matter is the potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification. The adequacy of Mr Bartlett’s explanation on behalf of the respondents is discussed below.

24    In addition to these matters, the power in r 16.53 to grant leave to amend a pleading after pleadings have closed must be exercised or carried out in the way that best promotes the overarching purpose of the power of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (s 37M of the Act; Caason Investments; Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [117]).

25    An amended pleading or particular may meet the general requirements for a grant of leave, but not the requirements for a proper pleading or particular, in which case it will not be allowed. This circumstance is to be distinguished from a case where an amendment ought to be allowed, although a party may be entitled to request further particulars.

26    Pleadings and particulars must meet the requirements set out in the Rules and, in particular, rr 16.02(2) (pleadings are not to be (inter alia) evasive or ambiguous or likely to cause prejudice, embarrassment or delay), 16.21 (striking out pleadings) and 16.41. Rule 16.41 is in the following terms:

(1)    A party must state in a pleading, or in a document filed and served with the pleading, the necessary particulars of each claim, defence or other matter pleaded by the party.

Note:    See rule 16.45.

(2)    Nothing in rules 16.42 to 16.45 is intended to limit subrule (1).

Note 1:    The object of particulars is to limit the generality of the pleadings by:

(a)    informing an opposing party of the nature of the case the party has to meet; and

(b)    preventing an opposing party being taken by surprise at the trial; and

(c)    enabling the opposing party to collect whatever evidence is necessary and available.

Note 2:    The function of particulars is not to fill a gap in a pleading by providing the material facts that the pleading must contain.

   Note 3:    A party does not plead to the opposite party’s particulars.

Note 4:    Particulars should, if they are necessary, be contained in the pleading but they may be separately stated if sought by the opposite party or ordered by the Court.

27    The amendments relate to incidents in relation to which the respondents allege that the applicant was guilty of murder or of being complicit in murder. Needless to say, such allegations are allegations of very serious criminal conduct.

28    The Full Court of this Court in Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 371 ALR 545 addressed the issue of the particularity required in the case of allegations of serious misconduct in a plea of justification in a defamation action. The Court said (at [145]–[147]):

In Wootton v Siever at p 508 Kennedy LJ referred to the requirements for pleading justification in the following terms –

The degree of fullness and precision which ought to be required in an action for libel from a defendant, who has pleaded a justification and has been ordered to give particulars under that plea, is not infrequently a matter which admits of reasonable debate. Certain general propositions are now, I think, not open to controversy. In every case in which the defence raises an imputation of misconduct against him, a plaintiff ought to be enabled to go to trial with knowledge not merely of the general case he has to meet, but also of the acts which it is alleged that he has committed and upon which the defendant intends to rely as justifying the imputation. This rule of justice is not limited in its application to actions of libel, although, of course, it includes them (see per Kay LJ, Zierenberg v Labouchere [1893] 2 QB at p 190), and its propriety is most evident in a libel case where the defendant has chosen to put the character of the plaintiff in serious jeopardy by the heinousness of the charges which are asserted or involved in the defendant’s plea of justification. In such a case, at all events, the pronouncement of Alderson B in Hickinbotham v Leach (1842) 10 M & W 361, 364, approved of and explained in reference to the modern system of pleading by Lord Esher M.R. in Zierenberg v Labouchere [1893] 2 QB at p 187, is not one whit too strong: “The plea ought to state the charge with the same precision as in an indictment.”

What underlies these observations is that if a defendant makes a defamatory statement about a plaintiff that is general in nature, any particulars of justification must descend to specific facts on which the defendant will rely, and in the case of serious conduct including criminal offences, a plaintiff should have fair notice of the case to the same degree as a criminal indictment. In Rush v Nationwide News at [53], Wigney J pointed to a particular feature of defamation cases that supports a requirement that particulars of justification be given with precision, which is that ordinarily the plaintiff gives evidence first –

Like an accused in a criminal proceeding, who is entitled to be put on notice of the particulars of the Crown case in respect of each element of the offence with which he or she is charged, a plaintiff in a defamation action is entitled to be put on notice of the precise particulars of the facts or allegations that are said to be true. Indeed, the need for precision in a defamation case is perhaps even more acute, given that ordinarily the plaintiff gives evidence first.

All of the above is consistent with the general observations about the purpose of pleadings in Dare v Pulham at p 664, and with the content of r 16.02(d), 16.03(1), and 16.41-16.43 of the Federal Court Rules. Those purposes extend beyond putting a party on notice as to the evidence that is to be led, and include framing the issues for the purposes of informing any discovery obligations, and for the purpose of identifying the material facts that a party will rely upon or seek to establish, and therefore the issues against which rulings on evidence might be made. The respondents called in aid their outlines of evidence and expert reports which they have served. But these documents are not a substitute for pleadings, which should set out succinctly and clearly the material facts on which the party relies in accordance with r 16.02 and 16.41-16.43 of the Federal Court Rules. There is a degree of circuity in relying on statements of evidence as identifying the issues by reference to which questions of admissibility will be determined.

29    At the same time, I recognise, as McCallum J pointed out in Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331 at [12], that the requirement is of specificity rather than one going to the information to be provided and the amount of detail in an indictment is often sparse.

Murder of Ali Jan: Particulars (102A), (107), (108), (109) and (111(a))

30    I start with an incident which appears in the Particulars of Truth in the existing Defence under the heading, “Murder of Ali Jan”. This incident is prominent in the articles containing the matters complained of by the applicant. There are 16 particulars, four of which are contained in a Confidential Annexure to the Defence ([102], [104], [105] and [106]). I can deal with the amendments without disclosing the confidential particulars.

31    The critical conclusions which are said to follow from this group of particulars, and this remains the case even if the amendments are allowed, is that the applicant’s conduct with respect to Ali Jan at Darwan on 11 September 2012 constituted murder (particular (116)) and an allegation, in the alternative, that by his conduct with respect to Ali Jan, the applicant was complicit in and responsible for murder (particular (117)). Particular (108) is a key particular in this class of amendments.

32    In order to understand the nature of the amendments and the applicant’s grounds for opposing them, it is necessary to set out the particulars directly bearing on the alleged murder of Ali Jan with the proposed amendments underlined and deletions struck through. They are as follows:

(102A)    Towards the end of the mission the Applicant and a number of soldiers including members of the Applicant’s patrol were clearing compounds at the South-East end of the village. In one compound they located and detained (placed under control) three fighting aged males. One of them was an Afghan male named Ali Jan (Ali Jan). The other two were Person 62 and Person 63. The three Afghan men, including Ali Jan, were handcuffed and questioned. The Applicant questioned Ali Jan and Person 62.

(107)    At or about this time the Applicant retrieved an Afghan male who had been detained in the centralised holding compound (Ali Jan). Towards the end of the interrogation referred to in (102A) above the Applicant moved Ali Jan, who was still handcuffed to outside the compound. The Applicant caused Ali Jan to be placed at the edge of a small cliff and forced him into a kneeling position. The Applicant then took a number of steps back before he moved back towards Ali Jan and kicked him hard in the midriff/abdomen causing him to fall back over the cliff and land in the dry creek bed below. The impact of the fall to the dry creek below was so significant that it knocked Ali Jan’s teeth out of his mouth.

(108)    The Applicant, together with a number of at least one soldiers under his command including Person 4, namely Person 11, then decided to kill Ali Jan by shooting him. The Applicant and Person 4, Person 11 and Person 56 then decided to cover up the killing by alleging that Ali Jan was a spotter., a member of the Afghan Partner Force, Person 12 and an interpreter, Person 13, then walked down into the creek bed to inspect Ali Jan, who was still alive. The Applicant directed a soldier under his command to kill Ali Jan, which he did.

(109)    Person 4 then performed SSE (sensitive site examination), that is, took photos of Ali Jan’s body, before he and the Applicant returned to their patrol’s helicopter landing zone for extraction. During the process of SSE Ali Jan’s handcuffs were cut off him and a throw-down was placed next to him for the purpose of the photograph/s.

(110)    The Applicant then sent a signal over the radio, in substance, “11, this is 211, we’ve just engaged a spotter, that is 1 EKIA” (enemy killed in action).

(111)    It may be inferred that Ali Jan was not a spotter in circumstances where:

(a)    he had been located by the Applicant and his patrol in a compound and then detained and handcuffed by the Applicant or a solider in his patrol, and had been questioned by the Applicant was retrieved from the centralised holding compound by the Applicant;

33    The applicant submits that the changes to particular (108) are critical. It is useful to set the particular out as it presently stands. It is as follows:

The Applicant, together with a number of soldiers under his command including Person 4, Person 11, a member of the Afghan Partner Force, Person 12 and an interpreter, Person 13, then walked down into the creek bed to inspect Ali Jan, who was still alive. The Applicant directed a soldier under his command to kill Ali Jan, which he did.

34    The allegations in this particular are that the applicant and a number of soldiers under his command walked down into the creek bed to inspect Ali Jan and that Ali Jan was still alive. The applicant directed a soldier under his command to kill Ali Jan which that soldier did. The group who walked down to the creek bed consisted of Person 4, Person 11, Person 12 (a member of the Afghan Partner Force) and Person 13 (an interpreter). On the one hand, it is to be noted that there is no allegation in the particular that the applicant and others agreed to kill Ali Jan. On the other hand, it is to be noted that there is an express allegation that the applicant directed a solider, who is not identified in the particular, to kill Ali Jan which the soldier did.

35    As I understand it, the respondents submit that particular (108) as it presently stands was prepared to a significant extent by reference to the account of the incident given by Person 13.

36    According to his outline of evidence, Person 13 lives in Houston, Texas. He was deployed to Afghanistan as a translator with the United States Armed Forces in 2012. During his deployment, he was stationed with the Australian Special Air Service Regiment (SASR). On 11 September 2012, the applicant and his troop were involved in a mission in the region of Darwan in search of one, Hekmatullah.

37    Hekmatullah is identified in one of the respondents’ earlier particulars as a member of the Afghan Army who, on about 29 August 2012, opened fire at Patrol Base Wahab killing three Australian soldiers and injuring two others. Further, in another particular, it is alleged that on or about 11 September 2012, the applicant and the troop of which he was a member, conducted a mission in Darwan in search of Hekmatullah.

38    In his outline of evidence, Person 13 states that he was included in the mission as a translator. His role was to accompany the Australian soldiers during the mission and to translate conversations between the Australian soldiers and Afghan individuals who they encountered during the mission. Prior to the helicopter extraction from Darwan, the applicant was standing at the top of a small cliff with his patrol and approximate to where the detainees were being held. During this time, Person 13 was standing at the bottom of a small cliff with Person 12, who was a commander within the Afghan Partner Force. Person 13 then observed the applicant take a handcuffed detainee to the edge of the small cliff. The applicant placed the detainee on his knees at the edge of the cliff. During this time, the detainee remained handcuffed. The applicant then took a few steps back and kicked the detainee extremely hard in the midriff off the cliff. Person 13 observed that the detainee was seriously hurt and his face was badly injured. The applicant then directed Person 12 to execute the detainee. He explained to Person 13 and Person 12 that the detainee should be executed because he was suspicious. Person 13 translated the applicant’s directive to Person 12. Person 12 and Person 13 then picked up the detainee off the ground where he was lying and walked him to nearby bushes to execute him as they did not want the remainder of the detainees to witness the execution. Person 12 then shot the detainee.

39    In his second affidavit, Mr Bartlett states that on 31 May 2019, the respondents filed and served 14 outlines of evidence on which they intended to rely, including an outline of evidence on behalf of Person 13. Mr Bartlett states that the outline of evidence of Person 13 alleges, in substance, that after he had observed the applicant kick a handcuffed detainee off a cliff, the applicant directed Person 12 to shoot the detainee and Person 12 did so.

40    Mark O’Brien Legal, on behalf of the applicant, wrote to MinterEllison, on behalf of the respondents, on 14 June 2019. The author of the letter set out various passages from the outlines of evidence of Persons 4 and 13 respectively and then said the following:

The above particulars and extracts relate to your clients’ allegation that our client either murdered Ali Jan or that he was complicit in and responsible for his murder. It is clear however that the Outlines of Evidence of Persons 4 and 13 are contradictory. For example, Person 4’s Outline suggests that Person 11 executed Ali Jan, and that our client, Person 4 and Person 11 were complicit in and responsible for his murder. However, Person 13’s Outline states that our client directed Person 12 to execute Ali Jan, and that our client, Person 12 and Person 13 were complicit in and responsible for his murder.

Our client presses for a response to our request for further and better particulars of your client’s defence. However, as our client’s Outlines are required to be served shortly, and in view of the serious nature of the allegation of murder, we request that you provide a response to the following request within seven days of the date hereof:

As to paragraph 108:

1.    Please identify the other soldiers under the Applicant’s command who walked down into the said creek bed to inspect Ali Jan.

2.    Please identify the soldier who the Applicant is alleged to have directed to kill Ali Jan.

41    MinterEllison responded to Mark O’Brien Legal’s letter on 24 June 2019. The author of the letter said the following:

In the meantime, we propose to respond to your questions set out in your letter of 14 June in respect of paragraph 108 of the Particulars of Truth and the Outlines of Evidence of Person 4 and Person 13.

The assertion in your letter that Person 4’s Outline of Evidence suggests that Person 11 executed Ali Jan is incorrect. It appears that this erroneous interpretation of the Outline of Evidence of Person 4 is the basis for your confusion. There is therefore no contradiction between the Outlines of Evidence of Person 4 and Person 13.

As to your request for further and better particulars in relation to paragraph 108:

(a)    The soldiers who inspected Ali Jan in the said creek bed are those referred to in paragraph 108 of the Particulars of Truth. To the extent that your request was generated by the word ‘including’ in particular 108, we are content to have the word ‘including’ substituted with ‘being’. We trust this resolves the issue.

(b)    The respondents expect the outline at trial to be that the relevant soldier was Person 12, as indicated in the Outline of Evidence served for Person 13.

It is clear that at the time this letter was written on 24 June 2019, the respondents were relying on the evidence of Person 13 to establish that it was Person 12 who shot Ali Jan.

42    In her affidavit sworn on 25 May 2020, Ms Allen addresses Person 13’s outline of evidence. She refers to evidence in that outline of evidence and states that on 23 November 2019, she flew to Houston to attempt to contact Person 13, having regard to the following matters: (1) the prominence of the allegations concerning Ali Jan in the Fairfax and Nine media; (2) the repeated publication of those allegations by the respondents; (3) the fact that Person 13 was the only non-soldier and the member of “support staff” alleged by the respondents to have witnessed and actively participated in the death of Ali Jan; (4) Person 13 was purportedly prepared to come to an Australian court to give evidence incriminating himself in two alleged war crimes; and (5) the fact that the confidentiality regime prevented the applicant providing anyone outside those specified in the Court’s orders with Person 13’s name. Ms Allen states that she succeeded in locating Person 13 at his residential address. After telephoning Mr Bartlett at MinterEllison and Mr McKenzie from Fairfax Media, Person 13 declined to be interviewed by Ms Allen.

43    The applicant submits that the amendments to particular (108) should not be allowed. He submits that the amended particular is embarrassing and imprecise. He submits that it omits any details concerning the actual killing of Ali Jan, including the identity of the killer, the number and identities of witnesses to the murder and the place of execution. He submits that the amended particular is defective in that it does not provide the required fair notice for such a serious allegation (i.e., the precision of an indictment).

44    Mr Bartlett gives evidence of the reasons for the amendment.

45    In his first affidavit, Mr Bartlett states that the respondents’ explanation for the amendments to particulars (102A), (107), (108), (109) and (111) is that they are made to align the pleading with the outlines of evidence served by the respondents.

46    In his second affidavit, Mr Bartlett provides a more detailed explanation for the amendments. He states that on 12 July 2019, the applicant served outlines of evidence in reply, including outlines of evidence alleging, in effect, that Person 12 was not at Darwan on 11 September 2012. Following receipt of those outlines, the respondents made inquiries about Person 12’s presence on the mission. Those inquiries caused the respondents’ legal representatives to doubt whether Person 12 was, in fact, on the mission, although they did not provide a definitive answer. Mr Bartlett states that the respondents’ legal representatives conferred by video with Person 62 and Person 63 on 11 October 2019 and 12 October 2019 respectively. Persons 62 and 63 are two of the four Afghan witnesses whose outlines of evidence are discussed below (at [61]–[64]). The accounts provided by Person 62 and Person 63 raised further doubts about the reliability of Person 13’s outline of evidence, in particular due to the allegations about the conduct of the “interpreter” in those outlines. On 23 March 2020, the applicant’s solicitors sent an email to the respondents’ solicitors asking the respondents to confirm whether the respondents allege that the “interpreter” referred to in the outlines of evidence of Persons 62, 63 and 64 was Person 13. The respondents replied by saying that the identity of the interpreter referred to in the outlines of Persons 62, 63 and 64 was not known to those witnesses.

47    Mr Bartlett states that the respondents’ legal representatives have made repeated attempts this year to speak to Person 13 in relation to the doubts held by the respondents about Person 13’s evidence and also to ascertain whether he was the “interpreter” referred to in the respective outlines of evidence of Persons 62 and 63 in order that the respondents could reply to the letter from the applicant’s solicitor. Mr Bartlett said that he is informed by Mr Dean Levitan, who is the lawyer at MinterEllison with the day-to-day conduct of the matter subject to his supervision, and he verily believes, that Mr Levitan sought to contact Person 13 by telephone and messages at least on the following dates: 23 March 2020, 16 April 2020, 21 April 2020, 22 April 2020 and 29 April 2020. Furthermore, Mr Bartlett verily believes that until 30 April 2020, Person 13 did not answer Mr Levitan’s calls. On 30 April 2020, Person 13 responded to Mr Levitan’s call and he was able to speak to Person 13 very briefly to arrange a video conference with the respondents’ junior counsel and senior counsel. Person 13 agreed to attend the video conference the following day, being 1 May 2020. Person 13 did not attend the video conference scheduled for 1 May 2020 and he has not answered calls or responded to messages from Mr Levitan since that time.

48    Mr Bartlett then expresses the following conclusion:

Owing to Person 13’s non-attendance at the scheduled video conference on 1 May 2020 and the Respondents’ inability to clarify or resolve doubts about the reliability of Person 13’s account with him, on 26 May 2020 the Respondents made the decision not to call Person 13 as a witness in these proceedings.

49    This then is the respondents’ explanation for seeking leave to make the amendment.

50    In order to appreciate the changes made to the respondents’ case by the amendment to particular (108), it is necessary to examine the amendment closely and to consider the explanation of the respondents’ case advanced by their counsel in the course of oral submissions on the application for leave. As not infrequently happens, counsel sought to explain why apparent uncertainties or deficiencies in the amendments identified by the applicant were not properly characterised as such.

51    The amendment to particular (108) contains an allegation that after the applicant kicked Ali Jan off the small cliff (the incident pleaded in particular (107)), the applicant together with at least one soldier under his command, namely, Person 11, then decided to kill Ali Jan by shooting him. This alleged agreement involving the applicant and at least Person 11, is a new allegation. It is then alleged that a decision was made by the applicant, Person 4, Person 11 and Person 56 to cover up the killing by alleging that Ali Jan was a spotter. This allegation is new and it is not clear from the amendment whether the alleged “cover up” decision was made before or after Ali Jan was killed. Furthermore, there is no allegation that Ali Jan was killed and the circumstances in which that occurred. Person 12 and Person 13 are no longer alleged to be part of the alleged events, either as part of the group who walked down into the creek bed or otherwise. These are significant changes to particular (108).

52    The respondents point to the fact that Person 4’s outline of evidence is that he observed the applicant and Person 11 conferring after the kick and just before the shooting. The respondents accept that the amendment to particular (108) does not contain an allegation that Ali Jan was shot, but submit that that is plainly the thrust of the allegations. The respondents’ counsel submits that particulars (109) and (110) make no sense unless Ali Jan is dead. Furthermore, he points to the fact that the applicant’s case as revealed in the outlines of evidence in reply, including the applicant’s own outline, is that an insurgent was killed shortly prior to the helicopter extraction from Darwan. The respondents’ counsel is correct in his submission that the applicant’s case is that an insurgent or spotter was killed by either the applicant or Person 11 in the period of two or three minutes before helicopter extraction. The respondents’ counsel further submits that particular (110) is common ground. There is obvious force in these submissions, but as the applicant submits, the shortcomings are merely one aspect of a wider problem with the amendment to particular (108).

53    In response to the applicant’s submission that the amendment to particular (108) means that the case now advanced by the respondents is limited, in terms of the applicant’s conduct, to an allegation that he was a party to a joint decision and engaged in a cover up and that the particular now omits any details concerning the actual killing, including the identity of the killer and the place of execution, matters which, if not particularised, would justify the quashing of an indictment, the respondents’ counsel submits that the submission ignores the fact that “this” is plainly part of a chain of events which begins with the kick which they allege caused catastrophic injury to a man who is handcuffed and who tumbled to the dry creek bed below. Person 4 observes the applicant conferring with Person 11 at the bottom of the cliff and Ali Jan is then shot either by the applicant or Person 11 and then they, with two other SAS soldiers, decided to cover up the killing and do so. The respondents anticipate that one of those four, namely Person 4, will give evidence to that effect. In response to the applicant’s submission that there are no particulars given which could possibly support an allegation of a joint criminal enterprise, the respondents’ counsel submits that the submission misunderstands the case which the respondents put and it misstates the relevant law. The respondents’ case is that the applicant kicked Ali Jan off the cliff and that, at the time he did so, Ali Jan had his hands tied. These circumstances indicate, so the respondents submit, that at that point the applicant’s intention was to kill Ali Jan. Person 11 is there with him and sees it happen. He and Person 11 are then observed at the bottom of the cliff conferring, shortly after which one of them, or both of them, shoot Ali Jan. The applicant, Person 11, Person 4 and Person 56 then agree to cover up the killing by making it look like Ali Jan was a spotter. That involved, according to the respondents, the applicant calling the murder in as a false enemy killed in action (EKIA), cutting off the hand ties, placing a radio on Ali Jan’s body, taking sensitive site examination photographs and then removing the ICOM radio and leaving the body next to a cornfield which is how the villagers then find him.

54    In another part of the respondents’ submissions, their counsel put the matter in this way. He said that the nature of the applicant’s kick to Ali Jan and the injury that Ali Jan suffered as he fell down the cliff was so severe that his death was inevitable, even without being shot as he subsequently was. He submitted that this was the moment where “obviously the applicant formed the intention to kill Ali Jan, or it might be said decided to kill Ali Jan” and he submitted that the applicant’s alleged act of kicking Ali Jan off a small cliff has always been a key part of the respondents’ case.

55    The respondents’ case is that, having regard to those circumstances, the “irresistible” inference is that “the applicant and Person 11 reached in their conferral at the bottom of the cliff a decision or an understanding or an arrangement that they would shoot Ali Jan, no doubt to bring his death about immediately to put him out of his misery or to make sure he didn’t live to tell the tale”. A statement of those circumstances is, according to the respondents, a perfectly orthodox way in which to allege a joint criminal enterprise and to support their submission, the respondents referred to the following observations of Hunt CJ at CL (with whom McInerney and Sully JJ agreed) in R v Tangye (1997) 92 A Crim R 545 as follows (at 13):

So far as a straightforward joint criminal enterprise is concerned, the jury should be directed along these lines:

(1)    The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.

(2)    A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.

(3)    A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.

(4)    If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.

(Citation omitted).

56    The respondents accept that they cannot identify which of the applicant or Person 11 fatally shot Ali Jan and that it is true that they are unable to identify the terms of the exchange between the applicant and Person 11 when they were conferring at the bottom of the cliff and near Ali Jan’s body. They submit that, on the law, they do not need to do that. The respondents submit that they have provided the required particulars. The identity of the killer is either the applicant or Person 11 or both. The manner of execution is that they shot him. The place where the execution occurred was between the dry creek bed into which Ali Jan fell after the applicant had kicked him off the cliff and the place where Ali Jan’s body was left with a radio planted on it to make it look like he was a spotter, that is, an EKIA. The applicant then calls in the killing over the radio. The respondents submit that the only change in the way in which they allege a joint criminal enterprise is that they now say it did not involve Persons 12 and 13, and is confined to the applicant and Person 11.

57    The respondents submit that the amendment to particular (108) does not alter the key features of their case. I have already referred to the respondents’ submissions about the significance of the applicant’s alleged act of kicking Ali Jan off a small cliff. In addition, the respondents submit that the amendment still leaves the applicant and Person 11 as the relevant actors in the shooting of Ali Jan and in the anterior decision or agreement or understanding to do that very thing.

58    The applicant’s submissions to the effect that the amendment to particular (108) is flawed by reason of a lack of proper particularity are set out above (at [43]). In addition, the applicant submits, in response to the respondents’ submission that they are pleading a joint criminal enterprise, that there is no allegation that Ali Jan was actually shot and no allegation that the applicant was actually present at the death of Ali Jan. The allegation, including the words, “then decided” is not a proper particular and the applicant submits that he is entitled to have particulars of the decision. As counsel for the applicant put it, there is no allegation as to who actually pulled the trigger. Furthermore, the applicant submits that the submission by counsel for the respondents that Ali Jan’s death was inevitable once he was kicked off the cliff by the applicant is inconsistent with the amendment and, in particular, the allegation that after the applicant had kicked Ali Jan off the cliff, the applicant and others then decided to kill Ali Jan. The applicant submits that the respondents’ submission “that the death flowed inevitably from the kick” is simply contradicted by their own particulars.

59    The respondents sought to support their case for a grant of leave by relying on various outlines of evidence. They referred to the outline of evidence of Person 4 filed and served by the respondents on 31 May 2019 and the applicant’s outline of evidence in reply filed and served on 12 July 2019. They also seek to rely on the outlines of evidence of four Afghan witnesses (Persons 62, 63, 64 and 65) in respect of whom they seek an extension of the time fixed by order of the Court for the filing and serving of outlines of evidence.

60    Unlike the other outlines of evidence for which an extension of time is sought, the outlines of the Afghan witnesses are relevant to the existing particulars as well as the amendments. I address the application for an extension of time in relation to their outlines later in these reasons. I have decided that an extension of time should be granted in relation to the outlines of evidence of the Afghan witnesses. A summary of their evidence is as follows.

61    Person 62 claims that he is Ali Jan’s nephew. He lived in Darwan in September 2012 and still lives there. He claims to have been detained with Ali Jan and Person 63 on 11 September 2012 and to have been interrogated by Australian soldiers. He claims he saw the applicant kick Ali Jan off the small cliff. He claims that Ali Jan was then taken to a cornfield by two soldiers who were short in stature. He claims Ali Jan was shot by a soldier, although it is not actually clear from his outline that he saw this happen. He claims that when he saw Ali Jan’s body, he noticed he had been shot in the face.

62    Person 63 claims that he is a distant cousin of Ali Jan. He lives next door to Person 62 in Darwan and he lived there in September 2012. The village in which Ali Jan lived is about three hours away on foot. He claims to have been detained with Ali Jan and Person 62 on 11 September 2012 and to have been interrogated by Australian soldiers. He claims to have heard shots and when he saw Ali Jan’s body, he believed that Ali Jan had been shot in the face.

63    Person 64 claims that Ali Jan is his wife’s brother. He has lived in Darwan for all of his life. He is the father of Person 62 with whom he lives. He claims that he saw a big soldier kick Ali Jan off a cliff. He claims that a short time later he heard gun shots. He claims that he saw Ali Jan’s dead body with a gunshot(s) wound to the face.

64    Person 65 lives in Afghanistan. She lived in Darwan until two years ago. She claims that she saw a person she was told was Ali Jan kicked off a cliff by a soldier. Shortly afterwards she heard gunshots.

65    This case is to be conducted by reference to the pleadings, including the particulars, and that is particularly important in a case such as this where serious allegations are involved. The case is not conducted by reference to the pleadings, including the particulars, and the outlines of evidence. In other words, if the pleadings, including particulars, are flawed that cannot be overcome by reference to the outlines of evidence. This is not to say that the outlines of evidence may not be relevant to other issues which may arise on an application for leave to amend a pleading. They may throw light on whether an amendment is or is not futile and they may throw light on the extent to which an opposing party may suffer prejudice should an amendment be allowed.

66    I have already referred to the respondents’ reliance on the applicant’s outline of evidence in reply.

67    In Person 4’s outline of evidence, he refers to the applicant kicking a man off a small cliff and he observed the man lying in the dry creek bed below. Person 4 claims that he then saw the applicant and Person 11 walk down to the bottom of the creek bed and confer with each other. Person 4 went to the bottom of the small cliff and saw that the man had been shot dead. Person 4 claims that he, the applicant and Person 11 then conferred with each other about how to cover up the assault and the execution of the man. The respondents submit that this account supports the amendment and, in particular, the allegation of a decision of the applicant and Person 11 to kill Ali Jan and a decision to cover it up.

68    The respondents submit, correctly, that with the outlines of evidence of three of the four Afghan witnesses and the outline of Person 4, there are now four persons who claim to be eye-witnesses to an event whereby Ali Jan, a handcuffed detainee, was kicked off the small cliff. They refer to paragraph 22 of Person 4’s outline of evidence, paragraph 37 of the outline of evidence of Person 62, paragraph 16 of the outline of evidence of Person 64 and paragraph 16 of the outline of evidence of Person 65.

69    The applicant also referred to various outlines of evidence on the application for leave to amend the Defence, although he did so for a different purpose than that of the respondents. He did so in order to show various inconsistencies between the particulars and the outlines of evidence, or between the outlines themselves with a view to showing, as I understood it, that there was confusion about the case he faces and the amendments do not provide him with fair notice of that case.

70    I consider that the fact that there might be inconsistencies in some respects in the accounts of different witnesses is not itself a reason to deny a grant of leave to amend a pleading. The respondents’ case is as set out in their pleadings, including the particulars.

71    The first matter referred to by the applicant relates to the place where Ali Jan was detained and from which he was taken to be placed at the edge of the small cliff. This touches upon some confidential information in the Defence, but I can deal with this submission in general terms. There is perhaps some uncertainty in the particulars, but the real point seems to be a tension between the outline of evidence of Person 4 on the one hand, and the respective outlines of evidence of the Afghan witnesses on the other. As I have said, I do not consider apparent inconsistencies between outlines of evidence a reason to refuse leave to amend.

72    Other inconsistencies or uncertainties identified by the applicant are as follows: (1) the amendments do not contain a statement identifying the place where Ali Jan was shot and the outlines of evidence are inconsistent (Person 4: the dry creek bed below the cliff; Person 13: in the bushes nearby; Person 62: pulled or dragged by two soldiers short in stature from the creek bed to the cornfield and not known to Person 62 whether at the time Ali Jan was dead or alive; Person 63: Ali Jan’s dead body lying in the cornfield; Person 64: Ali Jan’s dead body found under a berry tree); and (2) the statement by the respondents’ solicitors on 24 June 2019 that Person 4’s outline of evidence should not be construed as suggesting that Person 11 executed Ali Jan (see [41] above).

73    It may be that a further pleading of particular (108) will need to include a statement about where Ali Jan was shot. Otherwise, I agree with the respondents’ submission that the matters identified by the applicant are matters of evidence, not particulars.

74    I turn now from the submissions as to issues of the sufficiency of the amendments in terms of particulars and the alleged inconsistencies and uncertainties of the amendments when compared to the outlines of evidence to the more general considerations identified by the parties as relevant to whether leave to amend the Defence should be granted.

75    The applicant submits that the reason for the amendment to particular (108) is that the respondents now recognise that Person 12 was not at Darwan on 11 September 2012. He submits that the respondents have known that fact since the applicant served his outlines of evidence in reply on 12 July 2019 because in four of those outlines, it is said that Person 12 was not in Darwan on 11 September 2012.

76    The applicant submits that for two years since the articles were published, he has faced an allegation that he ordered Person 13 to translate to Person 12 an order to kill Ali Jan and that Person 12 carried out that order. He has had to confront an allegation that he knows is false and that the respondents have kept repeating and they repeated it publicly in the Defence. The applicant submits that the respondents know, and they have known for some time, that the allegation is false and that they have not withdrawn it except in the sense that they now want to delete it from their Defence. The hurt caused to the applicant by the respondents’ change of position, what the applicant’s counsel described as the “collapse of the person 13 case”, has been substantial.

77    To support these submissions, the applicant relied on the following matters.

78    On 28 May 2018, Mr McKenzie sent an email to the applicant which contained the following:

With my colleagues Chris Masters (working on assignment with Fairfax) and Dan Oakes (ABC investigative unit), I have been researching the involvement of a very small number of SASR personnel in alleged serious breaches of the Geneva convention in Afghanistan.

… We have sent personnel to the village of Darwan and other locations in Afghanistan to test information. We have interviewed persons who worked with you in Afghanistan.

…

We wish to make every effort to obtain all relevant information regarding these matters so they can be reported as fairly and accurately as possible.

Allegations:

-    On September 11, 2012, in Darwan, you are alleged to have kicked a detainee, Ali Jan Faqri, from the top of a small cliff and were then party to an agreement with a small number of soldiers, including partner force soldiers, that Faqri should be executed, as he was. What is your response to this allegation?

79    In the first and second matters complained of, the following statements appear:

[6]    An Australian special forces soldiers kicked a handcuffed detainee off a cliff before endorsing his summary execution, according to allegations made by direct witnesses.

[27]    The prisoner of war was allegedly detained by an SASR soldier in the Afghan village of Darwan, on September 11, 2012, and allegedly kicked off a cliff, badly injuring his face, two Defence Force insiders who witnessed the event said.

[28]    As the detainee lay injured, hands still bound, the two witnesses say SASR solider “Leonidas” was party to the decision among soldiers to “get him out of his misery”.

The applicant submits that the “two Defence Force insiders” referred to in these statements are Person 13 and Person 4. It seems to me that that is a reasonable inference on the evidence as it presently stands.

80    In an article published on 29 November 2018, Mr McKenzie and Mr Masters state the following:

In support of its truth defence, Fairfax alleges that Mr Roberts-Smith was involved in six unlawful killings in Afghanistan, including an alleged incident in 2012 in which he is said to have kicked Ali Jan, an unarmed and handcuffed man, off a cliff before directing a soldier under his command to shoot him.

81    In terms of prejudice, the applicant relies on the ongoing effects of the publications and the litigation as outlined above (at [7]), the need to carry out further investigations and the absence of proper particularity in the amendments.

82    For their part, the respondents made a number of submissions about prejudice. They pointed to the fact that they are prepared to pay any costs thrown away by reason of the amendments and that would, on the face of it, include Ms Allen’s wasted trip to Houston, Texas. With respect to the alleged prejudice to the applicant in having to reinterview witnesses, the respondents submit the following: (1) it is not clear which witnesses will need to be reinterviewed because of the amendments and the submission by the applicant that there is prejudice was made without being developed and without being based on any evidence; and (2) the applicant’s version of events and that of Person 11 is that the incident simply did not happen and he did not indicate how that would change in light of the proposed amendments.

83    The respondents submit that there is no prejudice to the applicant in tracking down the interpreter referred to in the outlines of evidence of Persons 62 and 63 because the “applicant knows the two interpreters who are present on that mission, whether assigned to his patrol or not”. The other point the respondents make is that the applicant appears to have taken no steps to advance his position against the possibility that Person 62 and Person 63 would give evidence in the matter. Their respective outlines of evidence were served on the applicant on 23 December 2019. The respondents submit that the Court has not been told what the applicant and his lawyers would like to do, but cannot, or have tried to do, but have failed. The only submission made by the applicant is that it is impossible to access anyone from Darwan because it is controlled by the Taliban.

84    Ms Allen says in her affidavit sworn on 25 May 2020 the following:

45.    I am informed by the Applicant and I believe, that as at September 2012, the village of Darwan in the Chora District of Uruzgan Province, was under the control of the Taliban and known by coalition forces as a Taliban ‘stronghold’. Approximately 90 percent of the province’s estimated population is Pashtun and the Uruzgan Province is the origin of many of the Taliban’s original leaders, including Mullah Mohammad Omar, who was born in Deh Rawood District.

46.    I am informed by the Applicant and I believe, that the village of Darwan was a focal point of the SASR during 2012 due to the high level of Taliban activity in the area. The Taliban use Darwan as an egress to transit along the Helmand River from the north to the Kandahar province in the south. During rotation XVIII, the SASR conducted two missions in Darwan in the space of just four months, including a rare joint mission with the Commandos on 11 September 2012.

85    The respondents submit that the applicant has a high degree of familiarity with the area and that there is nothing in Ms Allen’s affidavit to the effect that notwithstanding that knowledge, or because of that knowledge, it will be impossible to make inquiries of any person who was a villager in Darwan or anybody else who might know somebody who was a villager in Darwan at the relevant time. The respondents’ counsel also points out that both his client and the Australian Broadcasting Corporation (ABC) have been able to make contact with local people in Afghanistan.

86    The respondents also submit that it is relevant to the issue of prejudice that the applicant has been aware for some time of an investigation by the Australian Federal Police into the circumstances surrounding the alleged murder of Ali Jan. This investigation was recently the subject of an article in the Sydney Morning Herald by Mr McKenzie and Mr Masters (Annexure MHA-14 to the affidavit of Ms Allen sworn on 13 May 2020). Another article in the Sydney Morning Herald which was written by Mr McKenzie and Mr Masters on 23 March 2020 contains a statement that the applicant had confirmed that a police interview had taken place and he had claimed that he volunteered to attend the interview (Annexure MHA-12 to the affidavit of Ms Allen sworn on 3 April 2020). The point made by the respondents is that in light of this interview, one would expect some evidence from the applicant explaining why he is still not in a position to deal with the allegations in the amendments. The respondents submit that the claim of prejudice is “just a claim” and that it does not have any evidentiary foundation.

87    For the reasons which follow, the amendments should not be allowed at this stage because they, and most importantly, particular (108), are not properly particularised. However, I consider that the respondents should be given a further opportunity to bring in a properly particularised amendment.

88    The circumstances surrounding the alleged murder of Ali Jan are a prominent feature of the matters complained of and the importance of the incident is reflected in the fact that a substantial part of the applicant’s submissions and those of the respondents on the present application were directed to this incident.

89    The respondents’ explanation for the amendments is that they no longer wish to rely on the outline of evidence of Person 13. I have already set out the course of events whereby they have reached their present position. I do not think that the respondents have been at fault in any respect. Furthermore, it is relevant that certain key elements of the respondents’ case remain the same. They are that Ali Jan, while handcuffed, was kicked off a small cliff by the applicant and subsequently shot and killed. In addition, it is common ground that at about this time the applicant sent a radio message to the effect that one enemy had been killed in action. The applicant and Person 11 have given their respective accounts and they are, without going into the details, that they engaged and killed a spotter.

90    On the other hand, the applicant is in no way responsible for the respondents’ change in their case. Furthermore, the change in the respondents’ case involving, as it does, very serious allegations is not insignificant. I have no difficulty in accepting that the prolongation of this litigation causes anxiety and stress to the applicant and probably those around him. However, the disposition of this litigation is presently being prolonged by factors beyond the control of either the applicant or the respondents. I accept that the applicant must have the opportunity to investigate new allegations in the amendments and, if so advised, to file and serve new or supplementary outlines of evidence. The factors that led to the vacation of the trial date are ongoing and, although predictions as to a future trial date are difficult, I think there will be sufficient time for the applicant to address the amendments between now and a new trial date. In the circumstances, I am disposed to allow the respondents to amend the particulars in relation to the alleged murder of Ali Jan.

91    However, I would not allow the amendments in their present form because I consider that they are evasive, ambiguous and do not provide the applicant with fair notice of the case he has to meet. There is no express allegation that Ali Jan was shot and killed. Whilst it is no doubt part of the respondents’ case that Ali Jan was killed, the allegation that he was shot and killed should be pleaded. There is nothing to indicate whether the cover up decision was made before or after Ali Jan was shot and killed.

92    As I have said, counsel for the respondents tried to overcome the deficiencies in the particulars by explaining the respondents’ case in his oral submissions. With respect to him, this exercise really just served to indicate the deficiencies in the particulars.

93    I do not want to be taken to be indicating at this point what will or will not be a proper plea. That exercise should only be undertaken by the Court by reference to a full particularisation of the respondents’ case and with the benefit of full submissions. However, I make the following observations as to why the plea as it stands is ambiguous, evasive and does not provide the applicant with fair notice of the case he has to meet.

94    The respondents allege that the applicant murdered Ali Jan or was complicit in, or responsible for, Ali Jan’s murder. If it is alleged, as I understood counsel for the respondents to suggest, that the applicant formed an intention to kill Ali Jan at the time he kicked him off the small cliff, then that should be pleaded. If it is alleged, as I understood counsel for the respondents to suggest, that after the applicant and Person 11 decided to kill Ali Jan by shooting him, that one of them, or both of them, shot Ali Jan, then that should be pleaded. If it is alleged, as I understood counsel for the respondents to suggest, that the shooting of Ali Jan took place before the agreement to cover up the killing, then this should be made clear in the pleading.

95    I will give the respondents 10 days to bring in a proposed amended pleading with respect to the alleged murder of Ali Jan if so advised, and the applicant seven days to indicate his attitude to the proposed amended pleading.

Mission in Sola: Particulars (85A) to (85I)

96    The particulars in (85A) to (85I) are new and they introduce into the particulars a new incident. They appear under the heading “Mission in Sola”. The allegations in the particulars are as follows.

97    The respondents allege that on or about 31 August 2012, the applicant and the troop of which he was a member conducted a mission in an area named Sola. The purpose of the mission as alleged by the respondents was to locate allies of an objective named “Emerald Panther” who was understood to be assisting a member of the Afghan Army, namely, Hekmatullah.

98    The respondents allege that during the mission, an Afghan male named Haji Raz Mohammed Akhund (Akhund) was detained by the applicant’s patrol (particular (85B)). They allege that towards the end of the mission, Person 11, a solder in the applicant’s patrol and under his command, asked for a throw-down (particular (85C)). They allege that the applicant directed Person 4 to shoot and kill Akhund and that Person 4 then shot Akhund in the side of the head. It is alleged that the applicant deployed a throw-down so that the sensitive site examination (SSE) evidence might support a conclusion that Akhund was an active participant in hostilities (particular (85D)).

99    The respondents allege that it may be inferred from the applicant’s conduct that there was no legitimate basis to kill Akhund under the Rules of Engagement (ROE) issued by the Chief of the Defence Force to the Chief of Joint Operations relating to the conflict in Afghanistan and that his conduct in deploying the throw-down was designed to make the kill appear permissible within the ROE (particular (85E)). They allege that during the mission, another Afghan male, Abdul Jalil Akmund, who was the son of Akhund, attempted to take a weapon off Person 48 and that a struggle occurred. During the struggle, Person 48 engaged and killed Akmund within the ROE (particular (85F)).

100    The respondents allege that during the post-mission debrief, the applicant was asked what had happened with the person he had killed. The applicant said, in substance, that Person 48 should explain what happened in respect of his engagement first. After Person 48 did so, the applicant then said, in substance, that the same had happened to him (particular (85G)).

101    The respondents allege that by his conduct with respect to Akhund, the applicant breached Common Article 3 of the Third and Fourth Geneva Conventions in that he was complicit in and responsible for murder and that, in the circumstances, by his conduct with respect to Akhund, the applicant was complicit in and responsible for murder (particular (85H), particular (85I)).

102    The respondents’ explanation for seeking to introduce these allegations into their Defence at this stage of the proceeding is as follows.

103    Mr Bartlett states in his first affidavit that the respondents had some information about this mission in September 2012 which was the subject of an article published by the first respondent on 11 September 2012 entitled “Raid villagers shot in the head”. Mr Bartlett produces that article. Mr Bartlett states that whilst the respondents had that information and were aware of subsequent rumours about the mission, they did not have sufficient information to plead allegations about the applicant’s conduct on this mission in their Defence in this proceeding. There is no statement by Mr Bartlett as to any inquiries carried out by the respondents between the commencement of the proceeding and March 2020.

104    Mr Bartlett states that on 16 March 2020, the ABC published a segment on 4 Corners entitled “Killing Field” which referred to this mission. A copy of that segment is produced and the Mission in Sola is referred to in the segment. The relevance of this publication to the respondents’ conduct is not identified.

105    Mr Bartlett states that in about mid-March 2020, the respondents became aware of additional information to the effect of particular (85D) of the Amended Defence and that the respondents were not previously aware of that information. That information is not identified. The precise terms of particular (85D) are as follows:

The Applicant directed Person 4 to shoot and kill Haji Raz Mohammed Akhund. Person 4 then shot Haji Raz Mohammed Akhund in the side of the head. The Applicant deployed a throw-down so that the SSE evidence might support a conclusion that Haji Raz Mohammed Akhund was an active participant in hostilities.

106    Mr Bartlett states that in the period between mid-March 2020 and the date of his affidavit sworn on 15 May 2020, the respondents made inquiries in relation to the allegations in order to ensure that they were satisfied that there was a proper basis for the allegations in the pleading, and to ensure that Mr Bartlett was able to sign the certificate in the Amended Defence (see r 16.01(c)).

107    Mr Bartlett states that, subject to leave being granted to rely upon these new particulars, the respondents intend to call Persons 4, 7 and 14 as witnesses in support of the new particulars. A supplementary outline of evidence from each of those persons is annexed to Mr Bartlett’s affidavit. In the supplementary outline of evidence of Person 4, Person 4 claims to have been a participant in the events alleged in particular (85D). In the supplementary outline of evidence of Person 7, Person 7 addresses the matters in particular (85G). In the supplementary outline of evidence of Person 14, Person 14 describes a “throw-down” as an item of military equipment including a weapon, radio or chest webbing carried by a friendly force or found on site and placed with the body of a deceased during the sensitive site examination to use as evidence that the deceased was armed or otherwise an active participant in hostilities. Person 14 states that the practice was used by some members of the SASR in an attempt to make a killing look legitimate within the ROE and the Geneva Conventions.

108    The applicant opposes these amendments. He submits that they involve a fresh allegation of murder and that the delay in making the allegations is not explained. The allegations are not pleaded with the same precision as an indictment and he points out that, with respect to the critical allegation in the first two sentences of particular (85D), there is no statement as to the place where the murder allegedly occurred, the identities of any witnesses, or any surrounding circumstances. He points to the fact that Persons 4, 7 and 14 each provided outlines of evidence on behalf of the respondents by 31 May 2019. He submits, correctly, that the supplementary outline of evidence of Person 4 is extremely brief consisting of three paragraphs, and Persons 7 and 14 do not claim to have been eye-witnesses to the incident. The applicant submits that the explanation provided by Mr Bartlett is unsatisfactory because it does not include details of the information known in 2012 and the additional information obtained in March 2020. It does not indicate from whom the additional information was obtained and the circumstances in which it was obtained. The applicant points out that if the respondents are permitted to raise the allegations, then he and his lawyers will have to work out the identities of possible witnesses and attempt to interview them and prepare fresh outlines of evidence.

109    The respondents submit that the applicant’s submission that they have known about the incident since 2012 is wrong and they refer to Mr Bartlett’s evidence. They submit that the only conceivable prejudice to the applicant if the amendments are allowed is that he will be required to do additional work to meet the case. They submit that that is not prejudice which would lead to a refusal of the amendments.

110    More generally with respect to this incident and the other new incident (“Blooding of Person 66”) referred to below, the respondents submit that the contention advanced by the applicant that the effect of allowing two new incidents to be introduced into the particulars means that the litigation must restart from scratch should be rejected. With respect to the prejudice alleged by the applicant caused by the ongoing publication of articles by the respondents and the impact on him of the amendments to the Defence, the respondents submit that if their defence of truth is rejected, there is no question that the applicant’s distress will be compensable as part of the damages awarded by the Court by reason of the publication of the allegations, including the matters the respondents seek to introduce by the amendments.

111    The applicant responded to these contentions by submitting, with respect to the two new incidents involving allegations of murder, “Mission in Sola” and “‘Blooding’ of Person 66”, that the respondents have adduced no evidence which explains how this information came into their possession. The lack of such evidence is particularly noticeable in the case of the allegations with respect of the Mission in Sola where the applicant seeks to rely on supplementary outlines of evidence filed by Persons 4, 7 and 14. An outline of evidence of Person 4 was filed and served in May 2019, but there is no explanation from Person 4 or anybody else as to why Person 4 did not mention the incident at that time. Furthermore, there is no explanation from Mr Bartlett of the reasons the respondents wish to put this material forward two years after the matters complained of were published and one-and-a-half years after the proceedings were commenced.

112    There are significant difficulties with the respondents’ explanation for the delay in bringing forward allegations of this incident.

113    I accept, in the absence of any cross-examination that might have clarified the matter, that the information the respondents had about this mission in September 2012 is that contained in the article published in the Sydney Morning Herald on 11 September 2012. As I have said, there is no evidence of any inquiries made by the respondents between the commencement of the proceeding and March 2020. There is then the reference by Mr Bartlett to an ABC publication on 16 March 2020, but there is actually no indication of how this publication had a bearing on the respondents’ conduct. The details (including source) of the additional information said to be “to the effect” of particular (85D) are not provided. One might have expected that if it came from Person 4, in respect of whom an outline of evidence was filed and served on 31 May 2019, then that might have been disclosed.

114    The respondents’ counsel made a general submission at one point in his submissions that some sources might be protected by legal professional privilege or journalist privilege (transcript p 57). I firmly reject that submission to the extent it is advanced to ameliorate in some way the lack of a detailed explanation for delay. If a party wants me to place any weight on such a contention, then there should be a clear statement to that effect in the affidavit containing the explanation for the delay. There is no such statement in either of Mr Bartlett’s affidavits.

115    I do not rule out the possibility that the applicant may be entitled to further particulars of the allegations and, if so, he can request those particulars by letter. Any deficiency (if there be a deficiency) does not rise to the level of operating as a bar to the amendments.

116    In the result, I have decided the amendments should not be allowed. I accept that the vacation of the trial date and the absence of a new trial date means that the applicant will have time to investigate the allegations. However, the onus was on the respondents to provide a full and detailed explanation of their delay in bringing forward the allegations so that the Court could properly assess and weigh the competing considerations. They have not done that and that is fatal to a grant of leave to amend, particularly where the amendments involve such serious allegations. The final of the relevant matters in considering an application for leave to amend a pleading is identified above (at [23]) is an important consideration in relation to this class of amendments. It follows also that I would not extend the time for the filing and serving of the respective outlines of evidence of Persons 4, 7 and 14.

“Blooding” of Person 66: Particulars (122A) TO (122H)

117    The particulars in (122A) to (122H) are new and they refer to a new incident. They appear under the heading, “‘Blooding’ of Person 66”. The allegations in the particulars are as follows.

118    The respondents allege that “in or about 18 - 20 October 2012”, the applicant, and the troop of which he was a member, conducted an operation to catch or kill a target in an area called Syahchow (particular (122A)). The respondents allege that Person 66 went on the mission as part of the applicant’s patrol. Prior to the mission, Person 66 had not previously killed a person. Person 67 was also on the mission (particular (122B)).

119    The respondents allege that during the mission the applicant directed Person 66 to come with him into a compound and that inside the compound there were a number of persons under control, including two Afghan males who are designated in the particulars as Afghan Males 7 and 8 (particular (122C)). The respondents allege that Afghan Males 7 and 8 were removed from the compound by the applicant and Person 66 and taken to a nearby field and that the applicant stood behind Person 66 and ordered him to shoot one of Afghan Males 7 or 8. The respondents allege that Person 66 complied with the order (particular (122D)). The respondents allege that after the incident, the applicant said “in substance” that he had blooded Person 66 (referring to him by his nickname) (particular (122E)). They allege that, in the circumstances and by his conduct with respect to Afghan Males 7 or 8, the applicant breached Common Article 3 in that he was complicit and responsible for murder and that, in the circumstances, the applicant, by his conduct with respect to Afghan Males 7 or 8, was complicit in and responsible for murder (particular (122F), particular (122G)). The respondents allege that a couple of days after the mission, the applicant was sitting at a table in the mess hall at Camp Russell with other soldiers, including Person 67, and he said to Person 67 in substance, the following: “Oh, yeah, you know, officers shouldn’t be on the ground, you guys should be sitting on a hill away from it all. You know, we’ve got to do certain things, so, you know, you shouldn’t be around” (particular (122H)).

120    Mr Bartlett states in his first affidavit that, in about the beginning of April 2020, the respondents became aware of information “to the effect” of (122C) and (122B) of the particulars. He states that while the respondents were aware of rumours about the incident, which is the subject of the proposed particulars, and had made inquiries about those rumours, “they did not have sufficient information to plead allegations about the Applicant’s conduct in the Defence in these proceedings”. Mr Bartlett states that in the period following the beginning of April 2020 to the date of his affidavit (i.e., 15 May 2020), the respondents made inquiries in relation to the information of which they had become aware, in order to ensure the respondents were satisfied that there was a proper basis for the allegations in the pleading and to ensure that Mr Bartlett was able to sign the certificate in the Amended Defence. Mr Bartlett states that, subject to leave being granted to rely upon these proposed particulars, the respondents intend to call Persons 66 and 67 as witnesses in order to support the particulars. The respective outlines of evidence of Persons 66 and 67 are produced. Because they potentially contain national security information, the outlines of evidence have been partially redacted.

121    The applicant submits that the amendments should not be allowed because they involve the respondents raising serious allegations against him at a late stage in the proceeding. He further alleges that the particulars are embarrassing because they are imprecise. The critical allegation in particular (122D) does not identify the victim. It is said to be one of two men, the date is not specified, and there is no disclosure of the identities of any witnesses, or of any of the surrounding circumstances. The applicant submits that the allegation to the effect that after the incident he said in substance that he had “blooded” Person 66 appears to be an attempt to support the concept of the use of the “blooding” terminology for a soldier who had not previously killed a person. The applicant submits that the qualification by the words “in substance” suggests that the word “blooded” was not even used and he refers to the fact that he has served outlines of evidence of several witnesses in which it is indicated that they will give evidence that the term was not used.

122    The applicant further submits that the outline of evidence of Person 66 contains no additional details to those set out in the amendments and that the outline of evidence of Person 67 is not an eye-witness account. The applicant makes the point that Person 67 has been available and regularly provided comments to the respondents since 9 June 2018. The applicant also submits that the explanation for the delay in bringing these allegations forward is unsatisfactory.

123    As with the Mission in Sola, the respondents’ explanation for the delay in bringing forward the allegations of this incident is brief and omits details one might have expected to see provided.

124    The respondents’ explanation for the delay relates to information of which they had become aware “in April 2020 to the effect of paragraphs 122C and 122D of the Amended Defence”. That led to the respondents making inquiries in relation to the information in the period following the beginning of April 2020. The source of the information and the details of the information are not disclosed. It is implied that the inquiries in relation to the information, which inquiries are not disclosed, resulted in something that enabled the solicitor to sign the certificate in the Amended Defence that there was a proper basis for the allegations in it. Prior to April 2020, the respondents, although aware of rumours about the incident and having made inquiries about those rumours, did not have sufficient information to plead allegations about the applicant’s conduct in the Defence. No details of the rumours or the inquiries the respondents made about them are provided.

125    Again, I do not place any weight on the suggestion, if it is made, that the respondents’ explanation for the delay is to be read in light of possible claims for legal professional privilege or journalist privilege. There is nothing in Mr Bartlett’s affidavits to this effect.

126    As with the Mission in Sola, I do not rule out the possibility that the applicant may be entitled to further particulars of the allegations and, if so, he can request those particulars by letter. Any deficiency (if there be a deficiency) does not rise to the level of operating as a bar to the amendments.

127    Again, I accept that the vacation of the trial date and the absence of a new trial date means that the applicant will have time to investigate the allegations. Although the explanation for the delay has many features which are similar to the explanation for the delay in bringing forward the allegations in relation to the Mission in Sola, there is at least the difference that the respondents did make inquiries about the rumours and those inquiries did not provide them with sufficient information at the time to plead the allegations now advanced in the Defence. I consider, although with some hesitation, that that information is sufficient to tip the balance of the relevant considerations in favour of allowing the amendment. It follows that I would also grant an extension of time within which to file and serve the respective outlines of evidence of Persons 66 and 67. I will also hear from the parties as to whether a suppression order is necessary with respect to those persons.

Execution of an Unarmed Afghan Male on about 5 November 2012 — Particular (125)

128    The existing particulars address the execution of an unarmed Afghan Adolescent on about 21 October 2012 and the amendment to these particulars, which is the subject of the main dispute between the parties, is the amendment of the date in particular (125) from 21 October 2012 to 5 November 2012. The allegations in the existing particulars are as follows.

129    The respondents allege that in or about October 2012, the applicant said to the members of his patrol, in substance, “Hey fellas, we’re on 18, we need two more to get to 20”. They allege that in saying this, the applicant was referring to the kill board (particular (123)). The respondents seek to amend this allegation by alleging that the applicant said these words in late October or early November 2012.

130    The respondents allege that in or about October 2012, the commanding officer of the troop, Person 15, expressed concern to the troops that the number of persons killed in action during rotation 18 (defined earlier in the Particulars of Truth as the period from about June to November 2012) was too high (particular (124)). The respondents seek to amend this allegation to allege that the commanding officer’s comment was made in or about late October or early November 2012.

131    The respondents allege in particular (125) that on or about 21 October 2012, and during the last mission conducted by the applicant and the troop of which he was a member, a Toyota Hilux was intercepted by a number of members of the troop, including Person 16. They allege that the Toyota Hilux contained four Afghan males, including a male who was approximately 15 to 18 years old. They defined this person in the particulars as an Afghan Adolescent. They allege that the Afghan Adolescent was searched and detained by Person 16 and then handed over to the applicant’s patrol for questioning, together with the other occupants of the Toyota Hilux. They allege that at the time the Afghan Adolescent was visibly extremely nervous (particular (125)). The respondents seek to amend this allegation concerning the interception of the Toyota Hilux by altering the date from 21 October to 5 November 2012.

132    The respondents allege that shortly after the occupants of the Toyota Hilux were handed over to the applicant’s patrol, the applicant sent a radio communication which, in substance, was “two EKIAs” (particular (126)).

133    They allege that one or two days after the mission, Person 16 said to the applicant, in substance, “What happened to the young bloke who was shaking like a leaf?”. They allege that the applicant responded, in substance, “I shot that c*** in the head. [Person 15] told me not to kill any c*** on that job so I pulled out my 9mm and shot him in the head. It was the most beautiful thing I’ve ever seen” (particular (127)).

134    The respondents allege that, in the circumstances, by his conduct with respect to the Afghan Adolescent, the applicant breached Common Article 3 in that his conduct constituted murder and they allege that, in the circumstances, the applicant’s conduct with respect to the Afghan Adolescent constituted murder (particular (128), particular (129)).

135    In his affidavit, Mr Bartlett states that the purpose of the amendments to particulars (123), (124) and (125) is to correct the date of a particular mission.

136    The applicant submits that Mr Bartlett has not provided any explanation for the delay involved in seeking to make these amendments. He submits that Mr Bartlett’s explanation does not disclose when or how the new information as to the date of the mission was received. Furthermore, the applicant submits that the only outline of evidence filed and served in support of the application is that of Person 16 and he does not claim to be an eye-witness to the alleged execution of the unarmed Afghan male. He points to Person 16’s outline of evidence which asserts that a few days after 21 October 2012, the applicant told him he had killed the Afghan Adolescent. The applicant submits, correctly, that the time frame is impossible on the new particulars. He submits that, even assuming the date of the alleged murder is correct, there is still no specification of the date of the conversation which, he submits, is the only real evidence put forward in support of the allegation of murder. He further submits that, in order to meet the allegation, the applicant and his lawyers will have to work out the identities of possible witnesses, attempt to interview them and prepare fresh outlines of evidence.

137    With respect to the change of date in particular (125), the applicant submits that the reason for the change by the respondents is because he has shown that he could not have been present at this incident on 21 October 2012 by reason of the fact that at that time he was carrying out an operation in a different part of Afghanistan, that is, at Char-Chineh for which he received a commendation. The applicant points out that his mission, together with the dates, is also referred to at pp 494 and 495 of Mr Chris Masters’ book, “No Front Line”. The applicant submits that Mr Masters has not explained how it is that the existing particulars contain an allegation that he must have known was false. The applicant filed his outline of evidence in July last year and the passage from the extract from the commendation was included. That commendation shows quite clearly that on 21 October 2012, he could not have participated in the incident referred to in particular (125).

138    The explanation provided by Mr Bartlett is, the applicant submits, inadequate. All Mr Bartlett says is that the purpose of the amendments in particulars (123), (124) and (125) is to correct a date and a particular mission. The applicant also points out that the allegations in particulars (123) to (129) concerning the execution of an unarmed Afghan male on about 5 November 2012 are based on the outline of evidence of Person 16. No supplementary outline of evidence of Person 16 has been filed. Person 16 maintains that the Toyota Hilux was intercepted on 21 October 2012. He describes the incident. He says that a few days later, he discussed the incident with the applicant and that the applicant admitted shooting the unarmed Afghan male in the head. There are no other witnesses or potential witnesses in respect of whom outlines of evidence have been filed who attest to this incident.

139    For their part, the respondents submit that the only matter of apparent concern to the applicant is the change of date in particular (125). The respondents submit that all that has changed is the date of the last mission in 2012 “which plainly needed to be corrected from 21 October to 5 November”. The respondents point to the fact that in the applicant’s outline of evidence, he denies that the events took place at all. Further, and in any event, the applicant states that over the period of 20 to 22 October 2012, he planned and led a lone special reconnaissance patrol in the insurgent stronghold of Char-Chineh, Afghanistan to gain intelligence for future operations. The respondents submit that, in those circumstances, it is difficult to accept that there will be any prejudice to the applicant in meeting the change in the date.

140    The respondents do not explain in their evidence (as distinct from their submissions) the reasons for the need to correct the date. The only outline of evidence filed and served by the respondents dealing with this incident is that of Person 16 and his evidence is that the incident took place on 21 October 2012 and his conversation with the applicant took place, “[a] few days later”. The respondents have not sought to file and serve a supplementary outline of evidence of Person 16.

141    It seems that the respondents’ application to correct the date has come about because the respondents now accept the applicant’s evidence as revealed in his outline of evidence in reply that he was on another mission between 20 and 22 October 2012 for which he received a citation for the Commendation for Distinguished Service which he produces. There was also evidence from Persons 11 and 27 in their respective outlines of evidence filed and served by the applicant in reply to similar effect. There is no explanation from the respondents and, Mr Masters in particular, as to how this error had come about in light of what he had written in his book.

142    As with the Mission in Sola and Blooding of Person 66, I do not rule out the possibility that the applicant may be entitled to further particulars of the allegations and, if so, they can be requested by letter. Any deficiency (if there be a deficiency) does not rise to the level of operating as a bar to the amendments.

143    As I have said, the vacation of the trial date and the absence of a new trial date are significant matters. I consider that whenever the trial takes place, there will be sufficient time for the applicant to prepare any further response to these allegations brought about by the change of dates. He has already denied that any such incident took place. I would be disposed to allow the amendments, subject to one important matter. I would not allow an amendment at this stage of the case which is futile. The amendment would be futile if Person 16 maintains his evidence about the date the interception of the Toyota Hilux and his subsequent conversation with the applicant took place. As I have said, there is no supplementary outline of evidence from Person 16. Nor is there any statement from Mr Bartlett that he has spoken to Person 16 and been told by him that he is, or may be, wrong about the dates. I would only allow this class of amendments if one or other of these matters occurred.

The Order Sought with respect to the OUtlines of Evidence of Persons 62, 63, 64 and 65

144    The respondents were required to serve their outlines of evidence by 31 May 2019. They served on the applicant the respective outlines of evidence of Persons 62 and 63 on 23 December 2019. They served on the applicant an outline of evidence of Person 64 on 17 March 2020 and an outline of evidence of Person 65 on 1 April 2020. The respondents seek an extension of time within which to file the outlines of evidence and suppression orders in relation to the identities of Persons 62, 63, 64 and 65 in similar terms to the suppression orders made with respect to other witnesses or potential witnesses.

145    A summary of the respective outlines of evidence of Persons 62, 63, 64 and 65 are set out above (at [61]–[64]).

146    Mr Bartlett, on behalf of the respondents, provided the following explanation for the fact that the outlines of evidence of Persons 62, 63, 64 and 65 were not filed and served by 31 May 2019.

147    Mr Bartlett states that as at 31 May 2019, the respondents understood that there may be some villagers in Darwan who may have information relevant to these proceedings, although they had not themselves been able to confirm that. The respondents did not have contact details for, or access to, any of the Afghan witnesses. Mr Bartlett states that in about September 2019, the respondents became aware that Persons 62, 63 and 65 were persons who may have evidence relevant to these proceedings and they also became aware at about this time of the existence of another potential witness, a woman, whom to date they have not been able to interview.

148    Mr Bartlett states that Mr Levitan from about 4 September 2019 took steps to arrange conferences between the respondents’ legal representatives and the four witnesses previously referred to.

149    The applicant did not apply to cross-examine Mr Bartlett. Nevertheless, he criticised Mr Bartlett’s explanation. The applicant submits that the respondents’ explanation is only on information and belief and, in any event, is, at best, cursory. Importantly, he submits that the respondents were aware of “this potential source of evidence” two years ago as can be seen from the following matters.

150    First, on 28 May 2018, Mr McKenzie, Mr Chris Masters and Mr Dan Oakes sent an email to the applicant seeking his comment in relation to a joint Fairfax and ABC investigation and saying, among other things:

We have sent personnel to the village of Darwan and other locations in Afghanistan to test the allegations.

151    The applicant submits that the effect of this evidence is that before May 2018, the respondents “had access to people in Darwan”.

152    Secondly, in the first matter complained of published on 9 June 2018, the respondents stated that they had hired an Afghan journalist to locate Darwan villagers and Ali Jan’s family and that villagers had provided corroboration. The applicant submits that one would presume, in the absence of a contrary explanation, that the Afghan journalist had spoken to Person 62 (Ali Jan’s nephew) and Person 64 (Ali Jan’s brother-in-law) in mid-2018 or that they knew of their existence.

153    Thirdly, in the second matter complained of published on 8 June 2018, there is a reference to a freelance reporter recently tracking down Ali Jan’s family “for Fairfax media” and of the freelance reporter using a network of tribal elders and arranging for Ali Jan’s brother to travel to a safe house to tell the family’s story. The applicant submits that this further demonstrates that the respondents knew of the existence of the Afghan witnesses as at June 2018.

154    Fourthly, in the third and fourth matters complained of published on 10 and 9 June 2018 respectively, there is a reference to witnesses saying that Leonidas (i.e., the applicant) was party to a decision to put Ali Jan “out of his misery” and this claim had been “backed by the relatives of Ali Jan and they were interviewed this week by an Afghan journalist on assignment with the Herald”. The applicant submits that the respondents have had access to “these people, whom they now say they now want to put on, for that entire time” and that there is nothing in the affidavit of Mr Bartlett which contradicts that assertion.

155    Fifthly, on 10 June 2018, Mr Oakes, who two weeks earlier had been working with Mr  McKenzie and Mr Masters (see [150] above), published an article which included claims that the ABC had retained Bilal Sawary, “a highly-decorated Afghan journalist”, had interviewed two villagers, one of whom was Ali Jan’s brother.

156    Sixthly, documents which have been discovered by the respondents include extracts of video interviews taken in or about September 2018 in Afghanistan with individuals said by the respondents to be relatives of Ali Jan. In October 2019, the applicant asked the respondents to identify the person who interviewed the individuals in Afghanistan in 2018, but the respondents have not yet done so. The interview appears to be with Ali Jan’s wife and she identifies Person 62 as being there on the day Ali Jan was killed.

157    The applicant submits that, in light of these matters, it is difficult to understand Mr Bartlett’s statement that as at 31 May 2019, the respondents understood that there may be some villagers in Darwan who may have information relevant to these proceedings, although they had not themselves been able to confirm the above statements. Furthermore, counsel for the applicant noted that Persons 62 and 64 are Ali Jan’s nephew and brother-in-law respectively. The other points the applicant makes is that in their “explanation” the respondents have not revealed the following:

(1)    what they actually knew in 2018 and 2019;

(2)    what inquiries they made based on the knowledge which they had; and

(3)    how they became aware in September 2019 that Persons 62, 63 and 65 “were persons who may have evidence relevant to these proceedings”.

158    The respondents submit that the explanation for the delay is that at the time outlines of evidence were due to be served, the respondents did not have contact details for, or access to, the proposed witnesses. They submit that this is not surprising in circumstances were three of the four proposed witnesses live in a remote village in Afghanistan under Taliban control and the other is a woman living in Afghanistan. They submit that after they became aware of the proposed witnesses in September 2019, they acted diligently to obtain the evidence.

159    The respondents submit that there can be no doubt that the evidence is important to the respondents’ case and that the importance of the evidence is apparent from the outlines themselves. They submit that three of the witnesses are eye-witnesses to what is the most serious allegation made by the respondents in this case, namely, that the applicant kicked Ali Jan off a cliff after he had been detained and whilst he was handcuffed. They submit that the other witness was a witness to events immediately preceding the alleged incident and following it.

160    The respondents further submit that the applicant has been on notice of the evidence of Persons 62 and 63 since December 2019 and on notice of the evidence of Persons 64 and 65 since earlier this year.

161    With some hesitation, I have decided that the respondents should be granted an extension of time within which to file and serve the outlines of evidence of the Afghan witnesses. The explanation for not approaching the Afghan witnesses earlier lacks detail and is somewhat cursory, but, in the absence of cross-examination of Mr Bartlett, I consider that it should be accepted that, however obvious inquiries in this direction were, as at 31 May 2019 the respondents did not have contact details for the Afghan witnesses. I take into account the difficulties the applicant may face in conducting inquiries in an area apparently under Taliban control, but that is not enough to persuade me that the applicant will not have, in the time between now and the trial, the opportunity to make such reasonable inquiries as may be necessary in relation to the Afghan witnesses.

The Orders Sought with respect to the non-disclosure of the Identities of PErsons 62, 63, 64 and 65

162    As I have said, the respondents seek suppression orders pursuant to s 37AF of the Act with respect to the identities of witnesses or potential witnesses in relation to whom outlines of evidence have been served, namely Persons 62, 63, 64 and 65. The applicant opposes the making of suppression orders.

163    The Court has power to make suppression orders under Part VAA of the Act. Section 37AA of the Act defines “suppression order” as

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

164    Section 37AF relevantly provides that:

(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).

165    Section 37AE provides that:

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.

166    Section 37AG sets out the grounds on which the Court may make a suppression order:

(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.

The respondents rely upon grounds (a) and (c).

167    Mr Bartlett states that Persons 62, 63 and 64 reside in the village of Darwan and that that village is presently under the control of the Taliban. He states that each of these persons has placed themselves at significant personal risk by travelling outside of Darwan to confer with the respondents’ representatives and that he believes that there is a risk to the safety of each of Persons 62, 63 and 64 if it were known that they were giving evidence in these proceedings.

168    Mr Bartlett states that Person 65 no longer resides in Darwan. However, Mr Bartlett states that it is notorious that Afghanistan is a very patriarchal society where there are strict restrictions on what women can and cannot do. Mr Bartlett believes there is a risk to the safety of Person 65 “if it were known that she had spoken to the Respondents’ legal representatives and that she is giving evidence in these proceedings”.

169    With respect to the suppression orders sought by the respondents, the respondents submit that it is common ground that Afghanistan is a dangerous place and there is a risk of harm. They refer to my interpretation in an earlier decision in this matter which supported applying the normal calculus of risk adopted in the law. They submit that, applying that calculus of risk, this is an “obvious case” for suppression orders because it cannot seriously be doubted that Persons 62 to 65 are placing themselves at great risk of physical harm were they to be identified as people giving assistance to a Western media organisation . They submit that, in any event, the proper administration of justice may be prejudiced if witnesses are reluctant or unwilling to give evidence for fear of the potential consequences.

170    The applicant submits that the identities of Persons 62 and 63 have already been disclosed. Although the applicant did not make detailed submissions on this point, I was referred to a bundle of correspondence between the applicant’s solicitors and the respondents’ solicitors.

171    On 23 December 2019, the respondents’ solicitors wrote to the applicant’s solicitors, enclosing by way of service the outlines of Persons 62 and 63 and relevantly stated:

Person 62 and Person 63 are both individuals living in Afghanistan under Taliban control and have managed to provide information to the Respondents for the purposes of these proceedings. We consider that if their identities were to be publicly known, it would gravely endanger their safety.

Accordingly, we have attributed pseudonyms to each of these individuals.

172    On 10 February 2020, the applicant’s solicitors wrote to the respondents’ solicitors seeking advice as to the following: (1) whether Person 62 or Person 63 had been named in a specified public news article or in a public broadcast; (2) whether either Person 62 or Person 63 requested that their identities be protected; and (3) whether the respondents had given any undertakings in that regard.

173    On 19 March 2020, the applicant’s solicitors again wrote to the respondents’ solicitors, relevantly noting that their position remained that pseudonym orders are not appropriate for individuals who have already been publicly identified on national television and on the worldwide web.

174    On 19 March 2020, the respondents’ solicitors wrote to the applicant’s solicitors and confirmed the identities of Persons 62, 63 and 64 but disagreed that they had been publicly identified.

175    With respect to the evidence of Mr Bartlett, the applicant submits that Mr Bartlett’s belief that the safety of Persons 62 to 65 would be at risk if it were known they were giving evidence is wholly speculative. He submits that there is no evidence that Persons 62 to 65 have kept their participation in these proceedings a “village” secret. He further submits that the respondents do not explain why the Taliban would discourage, let alone persecute, Afghans from giving evidence against Western soldiers in a foreign court (whether in person or by videolink).

176    The applicant also submits that the suppression orders would, in the form presently sought, prevent the applicant’s legal representatives from engaging agents in Afghanistan to locate and investigate Persons 62 to 65. I do not need to address this submission in detail because the respondents accept that there should be a carve out in terms of the order they seek in order that investigations carried out by the applicant are not prevented or stifled in any way.

177    I note that the Act provides that a primary objective of the administration of justice is to safeguard the public interest in open justice (s 37AE of the Act). However, as Allsop CJ observed in Minister for Immigration and Border Protection v Egan [2018] FCA 1320 (at [4]):

Open justice is not an absolute concept, unbending in its form. It must on occasion be balanced with other considerations, including but not limited to considerations such as the avoidance of prejudice in the administration of justice…

178    With respect to the word “necessary” in each of s 37AG(1)(a) and s 37AG(1)(c), the following observations of the High Court in Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at [30]) concerning the predecessor to s 37AG are apposite:

As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish, that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities”. Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) “the administration of justice” spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.

It is insufficient that the making or continuation of an order under s 50 appears to the Federal 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.

(Citations omitted.)

179    I am not satisfied on the basis of the evidence on the present application that the proposed suppression orders are either necessary to protect the safety of each of the Afghan witnesses, or necessary to prevent prejudice to the proper administration of justice. In my view, the evidence adduced by the respondents regarding the risk of harm to the witnesses is general and speculative in nature. The respondents did not, for example, adduce any evidence regarding matters such as whether the Afghan witnesses have asked the respondents to seek the proposed suppression orders, whether the Afghan witnesses would themselves be concerned for their safety should the orders not be made, or whether the Afghan witnesses would themselves be reluctant or unwilling to give evidence in the proceedings in the absence of such orders being made. The respondents also failed in the course of their submissions to address the fact that it seems that at least one of the Afghan witnesses has already been named publicly. I consider that such matters are highly significant in terms of the grounds relied upon by the respondents under s 37AG of the Act and I am not prepared to draw the inferences the respondents advance on the evidence as it stands.

180    Nevertheless, in the circumstances, I am disposed to make the suppression orders sought by the respondents on an interim basis. I will give the respondents an opportunity to make an application for the orders to be continued and to bring forward such further evidence as they may be advised having regard to the matters identified in these reasons.

Other Orders

181    The respondents consent to an order that they provide the information requested in a letter from the applicant’s solicitors dated 3 April 2020 within seven days. The information requested by the applicant’s solicitors is the identity of the interpreter referred to in the respective outlines of evidence of Persons 62, 63 and 64 or, failing that, whether it is or is not alleged to be Person 13. An order to this effect should be made.

182    An order will need to be made which gives the applicant the opportunity to file and serve any outlines of evidence in reply to the amendments and the outlines of evidence in respect of which an extension of time is granted.

183    The respondents also seek an order in the following terms:

By no later than 6 weeks prior to the commencement of the hearing the parties are to exchange a list of witnesses that they intend to call as a witness in the proceedings, with the list to include any witnesses to whom subpoenas to attend to give evidence have been issued but with respect to whom an outline has not been served and, in respect of those witnesses an indication to which issue(s) that evidence is expected to be relevant.

184    The applicant opposes an order in these terms insofar as it relates to witnesses in respect of whom an outline of evidence has not been filed and served on the ground that it undermines the case management orders and directions which have been put in place in order to ensure that each party is given proper notice of the evidence a witness called at the trial will give. I agree with the applicant’s submission. If there is a need to call a witness in respect of whom an outline of evidence has not been filed and served, then the party who proposes to do so can make a separate application in relation to that particular witness. That application should be made promptly and, in any event, no later than two months before the first day of trial.

185    As I have said, the respondents seek suppression orders with respect to the identities of Persons 62, 63, 64 and 65 and, for the reasons I have given, I would only make such an order on an interim basis. Whether in those circumstances a “carve out” is necessary so that the applicant is not prevented from conducting such inquiries as he may be advised with a view to dealing with the evidence of these persons should be addressed by the parties.

186    The respondents also seek an order that the applicant serve a verified supplementary list of documents for discovery. I will make such an order if the parties still consider it necessary.

187    The respondents seek various orders in connection with the three defamation proceedings proceeding to trial together. Those orders are set out in paragraphs 11 to 15 of the draft minutes of order. No submissions with respect to these proposed orders have been made. If they cannot be agreed, I will give the parties the opportunity to make brief submissions on these orders should they be so advised.

Conclusions

188    For the above reasons, I have reached the following conclusions.

189    With respect to the application under r 16.53 for leave to amend the Defence:

(i)    leave to make the amendments to paragraphs (102A), (107), (108), (109) and (111(a)) is not granted, but the respondents have leave to bring in a new set of amendments within 10 days, and the applicant is to indicate his attitude to the new set of amendments within seven days;

(ii)    leave to make the amendments to paragraphs (85A)–(85I) is not granted;

(iii)    leave to make the amendments to paragraphs (122A)–(122H) is granted;

(iv)    leave to make the amendments to paragraphs (123), (124) and (125) will be granted upon compliance with one of the events referred to in [143] above.

190    The time for the filing and serving of outlines of evidence by the respondents be extended as follows:

(i)    Persons 62 and 63: 23 December 2019

(ii)    Person 64: 17 March 2020

(iii)    Person 65: 1 April 2020

(iv)    Persons 66 and 67: 18 May 2020

191    The application to extend the time for the filing and serving of the supplementary outlines of evidence of Persons 4, 7 and 14 is refused.

192    A suppression order under Part VAA of the Act in terms of paragraphs 7 and 8 of the respondents’ draft minutes of order dated 2 June 2020 should be made with respect to the respective identities of Persons 62, 63, 64 and 65, but only on an interim basis.

193    The respondents are to bring in draft minutes of order reflecting the conclusions in these reasons and dealing with any other orders.

Associate:    

Dated:    31 July 2020

SCHEDULE OF PARTIES