Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 12) [2021] FCA 465

[Redacted pursuant to the orders made in these proceedings on 12 July 2021 under s 19(3A) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth)]

ORDERS

THE COURT ORDERS THAT:

1.    The respondents be granted leave to issue a Subpoena to Give Evidence at the trial to each of the following Persons:

(a)    Person 24;

(b)    Person 40;

(c)    Person 41;

(d)    Person 42; and

(e)    Person 43.

2.    Leave to issue a Subpoena to Give Evidence to Person 56 be refused.

3.    The respondents’ application to amend their Defence to include particulars in the document entitled “SECRET — confidential — Additional truth particulars” to be served in accordance with the s 38B Orders made on 5 March 2021 be refused.

4.    The respondents be granted leave to serve the amended outline of evidence of Person 18 being Annexure “DLB-2” to the affidavit of Peter Llewellyn Bartlett sworn on 15 March 2021 save and except for paragraphs 24–36 inclusive.

5.    The question of costs on the interlocutory application filed on 16 March 2021 be reserved.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    The respondents bring an interlocutory application in each of three defamation proceedings in the Court. The parties to, and the nature of, the proceedings are described in Roberts-Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067 (Roberts-Smith (No 5)). I adopt without repeating my description of the parties to, and the nature of, the proceedings in Roberts-Smith (No 5). Four orders are sought in the respondents’ interlocutory application.

2    The first order sought by the respondents is that they be granted leave to issue a Subpoena to Give Evidence at the trial to 12 persons. The question of leave to issue a subpoena under r 24.01 of the Federal Court Rules 2011 (Cth) would, in the ordinary case, be dealt with in chambers and, unless the Court specifically requested submissions, without submissions from the parties. The reason the question of leave is being dealt with by way of a formal application and after hearing from the parties, is that in this case the Court made an order for the filing and serving of outlines of evidence. The time within which that was to be done has well and truly expired. A further reason for the procedure adopted in this case is that the respondents do not propose to file outlines of evidence with respect to 9 of the 12 persons.

3    The applicant did not oppose the respondents being granted leave to issue a Subpoena to Give Evidence to Persons 31, 69 and 70 and, at the conclusion of oral submissions, I granted leave to issue subpoenas to those persons. The applicant did not oppose the respondents being granted leave to issue a Subpoena to Give Evidence to Ms Emma Roberts, formerly Roberts-Smith, and to Ms Danielle Scott on condition that an order be made that the respondents file outlines of evidence of those witnesses. The respondents did not oppose an order being made that they do that and, with respect to those two proposed witnesses, I made an order that the respondents file and serve within seven days outlines of evidence for each of them. I otherwise stood over the application insofar as it related to those two proposed witnesses.

4    The respondents made a late application to amend their interlocutory application to add a Mr John McLeod to the list of persons in respect of whom they sought leave to issue a Subpoena to Give Evidence. The respondents’ application to amend the interlocutory application was supported by an affidavit of Mr Peter Llewellyn Bartlett sworn on 6 April 2021 and an outline of evidence of Mr McLeod. The applicant was not in a position to deal with the respondents’ application insofar as it related to Mr McLeod and I adjourned that aspect of the application to a date to be fixed. I was advised by the parties that they were having discussions with a view to ascertaining whether they could resolve without argument any issues concerning Mr McLeod.

5    In relation to the first order, that leaves for consideration whether leave should be granted to issue a Subpoena to Give Evidence at the trial to the following persons:

(1)    Person 24;

(2)    Person 40;

(3)    Person 41;

(4)    Person 42;

(5)    Person 43; and

(6)    Person 56.

6    The second order sought by the respondents is that they be granted leave to amend their Defence to include the particulars in the document entitled “SECRET — confidential — Additional truth particulars” to be served in accordance with the s 38B Orders made on 5 March 2021. I will refer to the particulars in respect of which leave is sought as the Additional truth particulars.

7    The current Defence is an Amended Defence to Statement of Claim dated 8 September 2020. As I have said in previous reasons delivered in the proceedings, the respondents plead justification under s 25 of the Defamation Act 2005 (NSW) and contextual truth under s 26 of the Defamation Act. They provide 138 Particulars of Truth and in paragraphs 139–152, they identify the particulars which are relevant to each of the imputations pleaded by the applicant.

8    The respondents have already made a substantial application to amend their Defence. I addressed that application in Roberts-Smith (No 5) and, to the extent that I allowed the amendments which were then sought, those amendments are reflected in the current Defence.

9    The s 38B Orders are orders made on 5 March 2021 under s 38B of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (the NSI Act).

10    The third order sought by the respondents is that they be granted leave to file and serve an amended outline of evidence for Person 18. There is an existing outline of evidence for Person 18 and that outline consists of eight paragraphs. The proposed amended outline of evidence for Person 18 consists of 40 paragraphs. The additional matters which Person 18 addresses are identified below.

11    The fourth order sought by the respondents is that they be granted leave to file and serve an outline of evidence of Mr McLeod. As I have said, due to its late introduction into the interlocutory application, that part of the application has been stood over to a date to be fixed.

The Evidence

12    The respondents rely on an affidavit of their solicitor, Mr Bartlett, sworn on 15 March 2021. Mr Bartlett was briefly cross-examined by counsel for the applicant. I permitted cross-examination of Mr Bartlett because the respondents’ application raises important matters for both parties and because, on any view, the application is made late. The trial is listed for six to eight weeks commencing on 7 June 2021. The evidence given by Mr Bartlett is summarised in the next section of these reasons.

13    It was convenient for identification purposes to receive into evidence on this application the Additional truth particulars referred to in the second order sought by the respondents and that document was marked Exhibit R3.

14    The Inspector-General of the Australian Defence Force (the Inspector-General) has conducted an inquiry under the Inspector-General of the Australian Defence Force Regulation 2016 (Cth) (IGADF Regulation) (the Inquiry) into a number of incidents XXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. The Inspector-General produced a report which was released to the public and the following appears in the report:

Consistently with the terms of reference and legal principles which define the Inquiry’s jurisdiction, in respect of potential criminal conduct, the highest the Inquiry’s findings rise in respect of potential criminal conduct of an individual is that there is credible information that a person has committed a certain identified war crime or disciplinary offence. This is not a finding of guilt, nor a finding (to any standard) that the crime has in fact been committed.

15    The respondents also sought to tender a “PAP” Notice given to the applicant and the applicant’s response to that notice. In Roberts-Smith v Fairfax Media Publications Pty Limited (No 6) [2020] FCA 1285 (Roberts-Smith (No 6)) at [4], Colvin J described the nature of a PAP Notice as follows:

When established, the Inquiry was required to be conducted in private. In the manner described below, the Inquiry has continued to be conducted in private. It has now reached a point where notices are being issued to persons who might be adversely affected by the Inquiry’s findings and recommendations (described by the Inquiry as Potentially Affected Persons). A number of notices have been issued to Potentially Affected Persons that contain the details of potential findings or recommendations that the Inquiry is considering whether to make that may affect the individual person to whom the notice is addressed. In addition, each notice sets out relevant factual background and a summary of relevant evidence (PAP Notices).

16    The applicant objected to the tender of the PAP Notice given to the applicant and the applicant’s response to the notice. His objection was based on three grounds and they may be summarised as follows:

(1)    the tender of the PAP Notice and the applicant’s response would infringe the prohibition in s 32(2) of the IGADF Regulation;

(2)    the tender of the PAP Notice and the applicant’s response should be refused on the basis that the probative value of those documents is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the applicant (see s 135 of the Evidence Act 1995 (Cth)); and

(3)    both the PAP Notice and the applicant’s response are substantially redacted and, therefore, are not complete. It is unfairly prejudicial to the applicant to receive and possibly act on documents which are substantially incomplete. Expressed in this way, this ground would seem to be an aspect of the second ground.

17    After hearing submissions, I ruled that, subject to some qualifications not presently material, the PAP Notice and the applicant’s response be received into evidence and marked Exhibit R4, albeit that they are not received for a hearsay purpose (see s 136 of the Evidence Act). Critical to my ruling is the purpose of the tender and the use sought to be made of the documents. The documents are only tendered on this application and they are not tendered to prove the truth of the facts in the documents. The documents are tendered to show that the respondents only recently became aware of the matters which have led to the making of this application and to show that there is a basis for the view that, to take the first order sought by the respondents as an example, the persons the respondents wish to subpoena to give evidence are likely to be able to give relevant evidence and to show that the applicant is aware of the evidence those persons are likely to give and has had an opportunity to consider and respond to it.

18    The first ground of objection raises an issue concerning the application of s 32 of the IGADF Regulation. That section provides as follows:

Self-incrimination

(1)    A person is not excused from giving information, producing a document or thing or answering a question under section 22 or 23 on the ground that the information, the production of the document or thing, or the answer to the question, might tend to incriminate the person or expose the person to a penalty.

(2)    However, in the case of an individual:

   (a)    the information given or the document or thing produced; and

   (b)    giving the information or producing the document or thing; and

(c)    any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or thing;

are not· admissible in evidence against the individual in any civil or criminal proceedings in any federal court or court of a State or Territory, or proceedings before a service tribunal, other than proceedings by way of a prosecution for giving false testimony that relates to section 22 or 23.

Note:    For immunity in relation to the use and the derivative use of a statement or disclosure made in the course of giving evidence, the making of the statement or disclosure, and any information, document or thing obtained as a direct or indirect consequence of making the statement or disclosure, see subsection 124(2CA) of the Act.

(3)    Despite subsection (1), a person is not required to answer a question if the answer to the question might tend to incriminate the person in respect of an offence with which the person has been charged and in respect of which the charge has not been finally dealt with by a court or otherwise disposed of.

(see also s 124(2CA) of the Defence Act 1903 (Cth).)

It is an offence for a member of the Defence Force not to comply with a request for information made by the Inspector-General (ss 22(3) and 29) and the Inspector-General may give a direction restricting the disclosure of information provided to him (s 21).

19    In the course of his submissions, the applicant emphasised, in particular, the fact that the prohibition on admissibility in subsection (2) applies not only to primary material, but also to any information, document or thing, derived, in the sense of obtained as a direct or indirect consequence, from primary material. He submitted that it was unknown in this case how much information given by other witnesses, that is, witnesses other than the applicant, was derived from primary information provided by the applicant and that was in circumstances in which the onus was clearly on the respondents to exclude derivative use. The applicant further submitted that insofar as the respondents contended that the applicant’s response to the PAP Notice did not fall within s 32 of the IGADF Regulation because it was provided voluntarily, that was to ignore the fact that a response to the PAP Notice was a practical necessity.

20    In my opinion, the answer to the applicant’s first ground of objection is that provided by the respondents by reference to Colvin J’s decisions in Roberts-Smith (No 6) and Roberts-Smith v Fairfax Media Publications Pty Limited (No 8) [2020] FCA 1630 (Roberts-Smith (No 8)). The documents which were the subject of the dispute dealt with by Colvin J in Roberts-Smith (No 6) were described by his Honour as follows (at [5]–[6]):

5    On 3 July 2020, the respondents served a notice to produce in the defamation proceedings requiring production by Mr Roberts-Smith of the following documents:

1.    Any notice received from the Inspector General of the Australian Defence Force (IGADF) indicating that the Applicant is a potentially affected person (PAP notice);

  2.    All documents accompanying the PAP notice; and

  3.    Any response by the Applicant to the PAP notice.

6    In addition, after being pressed by the respondents to discover documents concerning the Inquiry, Mr Roberts-Smith filed an amended list of discovered documents dated 13 July 2020. In the part of the list setting out the documents in respect of which privilege is claimed, the following description was stated at paragraph 67:

Documents to which the Inspector General of the Australian Defence Force Regulation 2016 applies.

21    An order for production was not sought with respect to certain documents described as follows (at [22]):

Finally as to the extent of the issues between the parties, I note that the respondents did not seek production of any information given by Mr Roberts-Smith to the Inquiry or any material derived by the Inquiry derivatively (directly or indirectly) as a result of disclosure by Mr Roberts-Smith (Excluded Category). It was accepted that any document recording such information would not be admissible in the defamation proceedings because of the terms of s 32(2) of the Regulation and s 124(2CA) of the Defence Act 1903 (Cth) which together have the consequence that the privilege against self-incrimination does not apply within the Inquiry (on the express basis that the information given or documents produced to the Inquiry (or information or documents obtained derivatively) are not admissible in evidence against the person in any civil or criminal proceeding).

22    In Roberts-Smith (No 8), the orders made by Colvin J included the following:

2.    The application for public interest immunity in respect of the documents the subject of the notice to produce dated 3 July 2020 and the documents described at item 67 of the applicant’s amended list of discovered documents dated 13 July 2020 (Documents) be upheld to the extent that the Documents contain the following:

(a)    information acquired compulsorily by the Inquiry from persons other than the applicant who, in the reasonable assessment of the Inspector-General of Australian Defence Force (IGADF) by relevant officers, may be the subject of future criminal processes;

(b)    information acquired by the Inquiry derivatively (directly or indirectly) from persons other than the applicant who, in the reasonable assessment of the IGADF by relevant officers, may themselves be the subject of future criminal processes; and

(c)    responses to the Inquiry from Mr Roberts-Smith that restate or indicate any of the matters in (a) or (b).

5.    On or before 30 November 2020, the IGADF do prepare a set of the Documents redacted to exclude the information described in paragraphs (a) to (c) of order 2 herein and to exclude the information given by the applicant to the Inquiry or any information derived by the Inquiry (directly or indirectly) as a result of disclosure by the applicant to the Inquiry (Redacted Documents).

6.    On or before 30 November 2020, the applicant do produce to the respondents the Redacted Documents and a list describing those documents in the manner in which documents are usually described in a list of documents save that the applicant is not required to disclose in the list any of the information that has been redacted in accordance with these orders.

23    As I understand it, the documents marked Exhibit R4 were prepared in response to the order in paragraph 5. In those circumstances, I can proceed on the basis that the PAP Notice and the applicant’s response do not infringe s 32(2) of the IGADF Regulation.

24    The second ground of objection raises an issue concerning the application of s 135 of the Evidence Act. The issue is whether the probative value of the PAP Notice and the applicant’s response is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the applicant. In view of the limited use to which the documents can be put as identified above (at [17]), in my opinion it cannot be said that the admission of the documents is unfairly prejudicial to the applicant.

25    The final ground of objection raises the issue that the documents are not complete. Like the second ground, this objection was also put in terms of the danger of unfair prejudice to the applicant within the terms of s 135 of the Evidence Act. It is true that the PAP Notice and the applicant’s response to it contain substantial redactions. However, again having regard to the limited use to which the documents can be put as identified above (at [17]), the fact of substantial redactions, in terms of the issues raised on the application, does not operate in a way that is prejudicial to the applicant.

26    For his part, the applicant relied on two affidavits of his solicitor, Mr Mark O’Brien, affirmed on 24 March 2021 and 1 April 2021 respectively. The evidence given by Mr O’Brien is summarised in the next section of these reasons.

The Facts

27    It is convenient to organise my statement of the facts by reference to the three orders sought by the respondents.

Leave to issue Subpoenas to Give Evidence at the trial to Persons 24, 40, 41, 42, 43 and 56

28    On 13 February 2019, the Court made orders in relation to the filing and serving of outlines of evidence and those orders included an order that the respondents file and serve their outlines of evidence by 8 May 2019. On 22 May 2019, the parties agreed to a variation to the timetable to the effect that the respondents’ outlines of evidence were to be filed and served by 31 May 2019.

29    On 17 December 2020, this Court made orders that the Inspector-General produce to the parties copies of the Sensitive IGADF Documents. On 18 December 2020, Mr Jeremy Forbes, a solicitor assisting Mr Bartlett, attended the offices of the Australian Government Solicitor in Sydney and collected copies of the Sensitive IGADF Documents. The Sensitive IGADF Documents comprise the PAP Notice given to the applicant and his response to that notice.

30    The respondents’ case is that prior to the receipt of the Sensitive IGADF Documents, the respondents, including their legal representatives, were not aware of any evidence that each of Persons 24, 40, 41, 42, 43 and 56 may be able to give which is relevant to matters in issue in the proceedings. The respondents, including their legal representatives, did not have contact details for each of those persons and have not been able to contact them. The respondents seek to adduce evidence from each of these persons at trial XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX

31    With respect to Person 56, the respondents’ understanding is that XXXXXXXXXXXXXXXX XXXXXXXXXXXX particularised in paragraphs 93–117 (Darwan), paragraphs 122A–122H (Syahchow) and paragraphs 123–129 (last mission) of the existing Particulars of Truth as well as one of the additional incidents in the Additional truth particulars and may have evidence relevant to the matters particularised. Mr Bartlett states that he is informed by Mr Dean Levitan, a solicitor assisting him, that the respondents, including their legal representatives, have made multiple attempts to speak to Person 56, including by contacting his legal representative, in excess of eight times since February 2020. Person 56 has not agreed to speak to the respondents or their legal representatives. Mr Bartlett states that the respondents, including their legal representatives, are not in possession of sufficient information to enable them to serve an outline of the evidence they anticipate Person 56 will give.

Leave to amend the Defence to add the Additional truth particulars

32    Mr Bartlett states that the respondents did not know of the information particularised in the Additional truth particulars and, accordingly, they were not in a position to particularise the incidents in their Defence prior to the receipt by them of the Sensitive IGADF Documents. The basis upon which the particulars are provided by the respondents is the information in the Sensitive IGADF Documents and the information in the amended outline of evidence for Person 18.

33    The Additional truth particulars allege two additional incidents to those pleaded in the existing Particulars of Truth. The first is an incident on XXXXXXXX XXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX  XXXXXXXXXXX XXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX

34    The second incident is alleged to have occurred on XXXXXXXXXX some two years and two months after the first incident. XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX XXXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXX XXXXXX XXXXXXXXXXXXXXXXXXXXXX  XXXXXXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXX

35    On 31 May 2019, the respondents served 14 outlines of evidence in support of the Particulars of Truth in their Defence, including an outline of evidence of Person 18. On 12 July 2019, the applicant served 23 outlines of evidence responding to the allegations made by the respondents in their Defence and the 14 outlines of evidence served by the respondents. On 15 May 2020, the respondents filed an application to amend their Defence. That application was heard by the Court on 2 June 2020 and judgment given on 28 July 2020 (Roberts-Smith (No 5)). On 8 September 2020, the respondents filed Amended Defences in these proceedings and, as a result of the amendments, on 2 October 2020, the applicant served further evidence, namely, a supplementary outline of evidence of himself, a supplementary outline of evidence of Person 11 and an outline of evidence of Person 68.

36    Mr O’Brien believes that if the respondents are given leave to amend their Particulars of Truth to raise the alleged incident on XXXXXXXXXXX then the applicant, including his legal representatives, will be required to reinterview Person 5, XXXXXXXXXXXXXXXXXXXXX XXX Person 27, XXXXXXXXXXXXXXXXXX and Person 32, XXXXXXXXXXXXXXXX XXXXXXXX Furthermore, they will seek to interview other persons present during the mission, including members of Person 29’s patrol and they will issue a Subpoena to Produce to the Department of Defence for all documents relevant to the mission on XXXXXXXX The applicant’s solicitors point out that the orders pursuant to s 38B of the NSI Act do not permit the discussion of any sensitive information or any national security information of sensitive witnesses via a means other than in person with the exception of identifying information.

37    Person 5 resides in the United States and, as a result of the COVID-19 global pandemic, Australians are banned from international travel unless they are granted an exemption by the Department of Home Affairs. Mr O’Brien notes that whilst it may be possible for Ms Monica Allen, a solicitor assisting him in this matter, to obtain an exemption on employment related grounds, the Australian Government website presently warns Australians not to travel to the United States. If Ms Allen were to obtain an exemption to travel to the United States to reinterview Person 5, Ms Allen would be required to enter and pay for compulsory hotel quarantine for 14 days on her return to Australia. In those circumstances, Mr O’Brien states that it is unlikely it will be possible for the applicant’s legal representatives to meet with Person 5 until he arrives in Australia to give evidence at the trial.

38    The applicant’s solicitor also points out that several of the applicant’s witnesses now have their own legal representation. Persons 5, 11 and 35 are legally represented. Person 29 has retained an Australian Defence Force legal representative in Western Australia to act on his behalf in relation to a Subpoena to Produce issued by the respondents. Person 32 has retained a solicitor and barrister in Western Australia to act on his behalf in relation to the Subpoena to Produce issued by the respondents. Mr O’Brien points out that the s 38B orders do not presently permit any third party legal representative to be present while sensitive information, sensitive documents or identifying information are discussed. Mr O’Brien has engaged in correspondence with the Australian Government Solicitor concerning the need for orders to be made pursuant to s 38B to facilitate the attendance of third party legal representatives at conferences with Sensitive Witnesses. Furthermore, Mr O’Brien produces an email from the Chairman of the SAS Association to its members in which the Chairman states that general expert legal advice is being sought relating to the witnesses’ general rights under the relevant legislation, and that until that advice is received, “we strongly recommend that individuals should not take any action in preparing or providing evidence of any kind”. Mr O’Brien states that this may mean that it is simply not possible to obtain access to speak with any of the prospective SOCOMD witnesses to these proceedings for an indefinite period and the window that has been open for communication with these witnesses may be closing.

39    Mr O’Brien gave evidence of the response times of the Department of Defence in the case of subpoenas to produce previously directed to the Department. On 5 March 2020, the respondents issued a subpoena to the Department of Defence and in the last week of August 2020, the Department of Defence produced approximately 1,000 documents in response to that subpoena. The subpoena covered each of the mission dates and events in the respondents’ Particulars of Truth. Mr O’Brien states that while the precise productions for each date and event were not consistent, generally the Department of Defence produced a large volume of documents, including mission plans, after action reports, aerial imagery, photographs, audio transcripts and other military documents. On 23 November 2020, the respondents issued a second subpoena to the Department of Defence and Mr O’Brien states that as at the date that he swore his first affidavit, no documents had been produced by the Department of Defence in answer to the second subpoena. Mr O’Brien is of the opinion that if the amendments are granted, it will be necessary for a similar subpoena to be issued to the Department of Defence for the two new missions which are the subject of the application to amend, namely the missions on XXXXXXX and XXXXXXX respectively. Mr O’Brien states that he is not aware of any circumstances which would lead him to believe that production by the Department of Defence in response to a new subpoena (which, if the amendments are allowed, would not be issued until mid-late April 2021) would occur any faster than previous productions and, as a result, relevant mission documents are not likely to be produced until after the trial has commenced on 7 June 2021.

40    Finally, the applicant submits that there is an unexplained delay in bringing forward the particulars in relation to the alleged incident on XXXXXXXXXX That delay relates to the respondents’ lack of contact with Person 18 who is the respondents’ witness with respect to the incident.

41    The respondents’ evidence as to their contact with Person 18 is as follows.

42    On 31 May 2019, the respondents served an outline of evidence setting out the evidence which they anticipated Person 18 would be able to give at trial. The outline of evidence was served on the basis of information the respondents and their legal representatives had from confidential sources and witnesses. The respondents have served a Subpoena to Give Evidence on Person 18. Mr Bartlett states that he is informed by Mr Levitan and believes that in September 2018 and May 2019, he took steps to contact Person 18 and on both occasions he was informed that Person 18 did not wish to speak to the respondents or their legal representatives. On the evening of 3 March 2021, Mr Levitan received a letter from Person 18’s legal representative. Prior to the receipt of this letter, the respondents and their legal representatives were not aware of Person 18’s legal representative. From 4 March 2021, Mr Levitan took steps to arrange a conference with Person 18 and, on 11 March 2021, the respondents’ legal representatives conferred with Person 18.

43    The applicant identified a number of unanswered questions with respect to the respondents’ contact with Person 18. They include the following. Why did the respondents not attempt to contact Person 18 after receiving the Sensitive IGADF Documents? Why did they wait three months to make their application? Why, all of a sudden, were the respondents’ solicitors contacted by Person 18’s legal rep resentative? XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXX. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX XXXXXXXXXXXX XXXXXX XXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXX

44    With respect to the incident on XXXXXXXXX the evidence is that no proposed outline of evidence has been served by the respondents on behalf of Person 56 or any other individual concerning the alleged events on that day. XXXXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXX XXXXXXXXX XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX As I understand it, a request by the applicant for the transcripts of evidence of the witnesses before the Inquiry has been refused by the Inspector-General. Mr O’Brien believes that if the respondents are given leave to raise the alleged incident on XXXXXXXXX, then the applicant’s solicitors will be required to reinterview Person 11, XXXXXXXXXXXXXXXXXXXXXXXX, and reinterview Person 27, XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX Furthermore, they will be required to make inquiries as to other persons present during the mission on XXXXXXXXXX (noting that no-one other than Person 56 is identified in the respondents’ proposed Particulars of Truth) and issue a subpoena to the Department of Defence for all documents relevant to the mission on XXXXXXXX. As with the incident on XXXXX XXX the applicant highlighted the fact that presently the s 38B Orders do not permit the discussion of any sensitive information or other national security information with Sensitive Witnesses via any means other than in person with the exception of identifying information. Furthermore, no documents have been produced by the Department of Defence in response to the second subpoena issued to it and Mr O'Brien repeats his comments on the probable timeframe for production of documents pursuant to a fresh subpoena.

Leave to file and serve an amended outline of evidence of Person 18

45    The events leading up to the production by the respondents of an amended outline of evidence for Person 18 are described earlier (at [42]). Mr Bartlett states that prior to 11 March 2021, the respondents were not in a position to serve an outline of evidence for Person 18 in the form of the amended outline of evidence.

46    Person l8’s “additional” evidence relates to the incident described as “Easter Sunday/Whiskey 108” which is the subject of existing pleadings at paragraphs 40–55 of the Particulars of Truth, and to the new incident alleged to have occurred on XXXXXXXX (paragraphs (63A)–(63W)).

47    With respect to the existing pleadings relating to the incident on 12 April 2009, Mr O’Brien states that until 15 March 2020, the only witnesses relied upon by the respondents in support of the allegations were Persons 4 and 14. Person 18’s outline of evidence served on 31 May 2019 was silent as to the events on 12 April 2009. On 12 July 2019, the applicant served six outlines of evidence responding to the allegations at paragraphs 40–55 of the Particulars of Truth concerning the alleged events on 12 April 2009. Mr O’Brien notes that, in addition to Person 18, it appears that the respondents intend to subpoena four or five additional Sensitive Witnesses concerning the allegations on 12 April 2009. Mr O’Brien believes that if the respondents are granted leave to rely upon the evidence of Person 18 as now set out in his amended outline and four or five other witnesses in respect of whom no outlines of evidence have been or will be served, the applicant’s legal representatives will be required to, amongst other things, reinterview Person 5, XXXXXXXXXXXXXXXXXXXXXXXXX, reinterview Person 29, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, reinterview Person 35, X XXXXXXXXXXXXXXXXX, reinterview Person 38, XXXXXXXXXXXXXXXXXX, and reinterview Person 27, XXXXXXXXXXXXXXXXXX Furthermore, they will be required to interview Person 68, XXXXXXXXXXXXXXXXX and make further inquiries as to other persons present during the mission on 12 April 2009.

48    Person 35 resides in New Zealand and the applicant's solicitor refers to the travel restrictions between Australia and New Zealand in existence as at 24 March 2021. Those travel restrictions between Australia and New Zealand have now changed. With respect to Person 5, the applicant’s solicitor notes that it is unlikely that the applicant’s legal representatives will be able to reinterview Person 5 until he arrives in Australia to give evidence at the trial (see at [37]).

Analysis

1.    Leave to issue Subpoenas to Give Evidence at the trial to Persons 24, 40, 41, 42, 43 and 56

49    As I have said, the Court made an order that the respondents file and serve outlines of evidence of the witnesses they proposed to call at trial by 31 May 2019. The respondents served their outlines of evidence on 31 May 2019. There was an extension to the order in relation to Persons 62, 63, 64 and 65, but that is not material for present purposes (see Roberts-Smith (No 5) at [144]–[161]).

50    In effect, the respondents are seeking leave to call Persons 24, 40, 41, 42, 43 and 56 as witnesses at trial without filing and serving outlines of evidence within the period fixed by order of the Court, or at all. To overcome the difficulty that outlines of evidence will not be served, the respondents point to the fact that XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXX XXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXXXXX As far as the delay is concerned, the respondents submit that they are not at fault as they only became aware of the fact that Persons 24, 40, 41, 42, 43 and 56 can give relevant evidence after receiving the PAP Notice and the applicant’s response and that was in circumstances where the applicant has been aware of the information for some time.

51    In my opinion, in terms of the applicant’s ability to deal with the evidence, it is necessary to draw a distinction between the evidence of Persons 24, 40, 41, 42 and 43 on the one hand, and Person 56 on the other. That is because the evidence of Persons 24, 40, 41, 42 and 43 relates to an incident which is pleaded in the existing Particulars of Truth (Whiskey 108 Particulars [40]–[55]), whereas the evidence of Person 56 relates to a new incident, being the incident on XXXXXXXX for which leave to amend is sought and an incident pleaded in the existing Particulars of Truth (Incidents in September, October and November 2012 Particulars [93]–[129]). XXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXXXX

52    The applicant’s principal objection to the application in relation to Persons 24, 40, 41, 42 and 43 is that their evidence is inconsistent with the pleading of the incident in the existing Particulars of Truth. I do not propose to go through the details of what the applicant said were inconsistencies, other than to address the applicant’s best example. In (46) of the existing Particulars of Truth, the respondents allege that in the presence of the applicant, Person 5 ordered Person 4 to execute Afghan Male 1, XXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX XXXXXXXXX XXXXXXXXXXXXXXXX No doubt this is a significant difference on an important topic. However, inconsistency per se is not a reason to refuse the application. It might be if it is such as to raise a new case, but I do not consider that any inconsistencies (if, and to the extent, there are inconsistencies) rise to that level. I grant the application with respect to Persons 24, 40, 41, 42 and 43.

53    As far as the application concerns Person 56, I refuse the respondents’ application to amend the Particulars of Truth to plead the incident on XXXXXXX and my reasons are set out below. The difficulty with the other area in which it is said that Person 56 can give evidence (paragraphs 93–117 (Darwan), paragraphs 122A–122H (Syahchow) and paragraphs 123–129 (last mission)) of the existing Particulars of Truth is that there is no indication of evidence he will give.

54    I have made orders in this case for the exchange of outlines of evidence. The purpose of an outline of evidence is to provide notice of the evidence to be given by the witness (see paragraph 7.2 of Defamation Practice Note (DEF–1)). The absence of an outline of evidence or, as in the case of Persons 24, 40, 41, 42 and 43, what I consider to be a sufficient equivalent, means that the applicant will not be given any notice of the evidence Person 56 may give. Indeed, as I understand it, the respondents do not know what evidence Person 56 is likely to give. It would be unfair to the applicant to allow the respondents to call Person 56 as a witness in those circumstances and I refuse the application insofar as it relates to Person 56.

2.    Leave to amend the Defence to add the Additional truth particulars

55    As I have said, the Additional truth particulars involve allegations XXXXXXXXXXXXXXXX XXXXXX XXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXX XXXXXX XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXX

56    In Roberts-Smith (No 5) at [14]–[29], I identified the relevant principles with respect to an application for leave to amend a pleading and with respect to the extent of particularity required in the case of allegations of serious misconduct raised in a defence of justification in a defamation proceeding. I will not repeat what I said in those reasons.

57    As I have said, the respondents filed their Defence on 16 October 2018 and following Roberts-Smith (No 5), their Amended Defence on 8 September 2020. This interlocutory application was filed on 16 March 2021. The trial is listed to commence on 7 June 2021 and, on any view, the application is made very late in the course of the pre-trial process.

58    Mr Bartlett gave the following explanation for the timing of the application:

10.    At all times prior to the receipt by the Respondents of the Sensitive IGADF Documents the Respondents (including their legal representatives) did not know of the information particularised in the additional truth particulars, and accordingly were not in a position to particularise the incidents.

59    Mr Bartlett was briefly cross-examined by counsel for the applicant and he accepted that he or his firm or his clients were aware of rumours concerning the two incidents and of allegations concerning them before the respondents received the Sensitive IGADF Documents. The evidence went no further than that. In the circumstances, I accept Mr Bartlett’s explanation.

60    The respondents submit that the applicant has been aware of the allegations concerning the two new incidents since he received the PAP Notice on XXXXXXXXX and has had and taken the opportunity to turn his mind to the allegations, to take advice and to provide a detailed response to the allegations. He provided a response to the PAP Notice on XXXXXX. That submission is correct.

61    The prejudice identified by the applicant should the Additional truth particulars be allowed are the difficulties he will face in preparing a case to meet the particulars in time for the commencement of the trial on 7 June 2021. The fact that he has been aware of the allegations and had the opportunity to respond to them upon advice, albeit none of this was in the context of these defamation proceedings, is undoubtedly relevant to the degree of prejudice he is likely to suffer if the Additional truth particulars are allowed.

62    The respondents submit that I should take into account the unusual nature of this case in that there are a number of persons who are likely to have relevant knowledge who are not prepared to cooperate. Further, there is, according to the respondents, only a small number of witnesses to each new incident and, in the case of the incident alleged to have occurred on XXXXXXXX the only witnesses are the applicant and Person 56. Further, the respondents submit that the applicant’s response is not complicated. It is that the incidents did not occur. Finally, the respondents submit that the two new incidents XXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX

63    Although there is force in a number of points made by the respondents, the fact is I see no reason not to accept Mr O’Brien’s evidence concerning the matters which the applicant would wish to attend to should the Additional truth particulars be allowed, such as reinterviewing existing witnesses, interviewing potential witnesses and the difficulties occasioned by the existing form of the s 38B Orders and the need to issue subpoenas to the Department of Defence. It is difficult to be precise about the extent of the difficulties facing the applicant if the Additional truth particulars are allowed and the weight that should be placed on them, but what is clear is that the time between now and the beginning of the trial is short. In those circumstances, and weighing all the matters I have identified, I am satisfied that there is a real and substantial prospect of prejudice to the applicant in terms of his preparation for trial should the Additional truth particulars be allowed.

64    I have taken into account the importance of the Additional truth particulars to the respondents’ defence while at the same time taking into account the seriousness of the allegations from the applicant’s point of view.

65    In my opinion, the decisive factor in the determination of this aspect of the application is the real and substantial prospect of prejudice to the applicant in terms of his preparation for trial should the Additional truth particulars be allowed. In my opinion, the importance of this matter is such that the respondents’ application to amend to add the Additional truth particulars should be refused.

66    In the circumstances, it is not necessary for me to deal with an argument by the applicant put at a fairly high level of generality that the amendments themselves in relation to the incident on XXXXXXXX are defective and should not be allowed for that reason. XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXX On the face of it, I do not consider that the complaints made by the applicant are so fundamental as to warrant the refusal of the application to amend as distinct from an order for particulars. However, in the circumstances, I do not need to finally resolve this issue.

3.    Leave to file and serve an amended outline of evidence of Person 18

67    The amended outline of evidence of Person 18 refers to the incident on XXXXXXX and should not be allowed to that extent because the application to amend the Particulars of Truth to raise this incident has been refused and, therefore, the incident is not raised on the pleadings. The outline also refers to an incident raised in the existing Particulars of Truth and I am satisfied that the amended outline should be allowed to that extent.

68    The applicant submitted that Person 18’s outline of evidence introduced a new case, or a case inconsistent with the existing particulars, in a number of respects. I will not set out the details of the submissions. I think there is one new matter introduced by Person 18 and that is his reference to the fact that he overheard a heated and panicked conversation between the applicant and Person 5. That does not seem to me to be a new case or to raise an inconsistency.

69    I made an interim suppression order pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) in relation to Person 18’s amended outline of evidence. Subject to giving the Commonwealth of Australia an opportunity to make a submission, I would replace that order with a final order, but only as to that part of the outline which has been disallowed (i.e., paragraphs 24–36 inclusive). The content of those paragraphs will not be part of the trial and, in my view, it would prejudice the proper administration of justice for the information to become public by reason of an unsuccessful attempt to seek leave to adduce the evidence at the trial.

Conclusions

70    For the reasons set out above, I made the following orders on 23 April 2021:

(a)    Person 24;

(b)    Person 40;

(c)    Person 41;

(d)    Person 42; and

(e)    Person 43.

Associate:    

Dated:    6 May 2021

SCHEDULE OF PARTIES