Federal Court of Australia
Roberts-Smith v Fairfax Media Publications Pty Limited (No 16)  FCA 584
NSD 1486 of 2018
THE AGE COMPANY PTY LIMITED (ACN 004 262 702) (and others named in the Schedule)
NSD 1487 of 2018
THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED (ACN 008 394 063) (and others named in the Schedule)
DATE OF ORDER:
THE COURT ORDERS THAT:
1. (a) The subpoena to produce documents dated 12 April 2021 and addressed to Dr Parbodh Gogna be set aside.
(b) The applicant’s Amended Interlocutory application dated 19 May 2021 be otherwise dismissed.
2. The parties be heard on the order to be made with respect to paragraph 2 of the Notice to produce served by the applicant on the respondents on 20 April 2021.
1 These reasons address two interlocutory applications made in three defamation proceedings in the Court. The background to the three proceedings, the parties to the proceedings and their nature are sufficiently described, for present purposes, in Roberts-Smith v Fairfax Media Publications Pty Limited (No 5)  FCA 1067. The circumstances surrounding the respondents’ application to file and serve an outline of evidence of Ms Roberts are described in Roberts-Smith v Fairfax Media Publications Pty Limited (No 13)  FCA 549.
2 The first application is brought by the applicant. In that application, the applicant seeks orders setting aside three subpoenas to produce documents directed to Dr Parbodh Gogna, Dr Bruce Lawford and Dr Robi Sonderegger respectively. The application is supported by an affidavit of Mr Paul Svilans sworn on 7 May 2021. The application is opposed by the respondents and they rely on an affidavit of Mr Peter Bartlett affirmed on 11 May 2021. The subpoenas were issued with the leave of the Court under rr 24.01 and 24.12 of the Federal Court Rules 2011 (Cth) (the Rules). Rule 24.15 provides that a party may apply to set aside a subpoena in whole or in part. The grounds upon which a subpoena to produce documents may be set aside are described below (at –).
3 The second application is brought by the respondents. In that application, the respondents seek an order setting aside paragraph 2 of a Notice to produce served on them by the applicant under r 30.28 of the Rules. Paragraph 2 is in the following terms:
2 One copy of all covert recordings of the Applicant talking to various associates in the possession of the Respondents, including the covert recordings as referred to on page 10 of The Sydney Morning Herald article headed “Buried evidence and threats: How Ben Roberts-Smith tried to cover up his alleged crimes” published on 11 April 2021, a copy of which is annexed and marked “B”.
4 The application is supported by an affidavit of Mr Bartlett sworn on 10 May 2021. The applicant opposes the application and he relies on an affidavit of Mr Svilans sworn on 11 May 2021. A Notice to produce may be set aside on similar grounds to those upon which a subpoena to produce documents may be set aside.
The Applicant’s Application for orders setting aside the Subpoenas to Produce Documents
5 Dr Parbodh Gogna is a general medical practitioner. The subpoena addressed to him is dated 12 April 2021 and seeks the production of the following class of documents:
1. All documents comprising your file relating to Ben Roberts-Smith (DOB 1 November 1978) for the period 1 January 2017 to the date of this subpoena, including all notes, reports and referrals.
6 The applicant has filed an outline of evidence of Dr Gogna dated 11 April 2019. The applicant recently advised the respondents that he proposes to call Dr Gogna as a witness at the trial.
7 According to Dr Gogna’s outline of evidence, he will give the following evidence at the trial. He is a registered medical practitioner working in the Australian Capital Territory. He currently holds the position of Chief Medical Officer and Surgeon General for the Department of Home Affairs and the Australian Border Force respectively. He provides strategic medical advice to the Department of Home Affairs and the Commissioner of the Australian Border Force.
8 Dr Gogna was born in the United Kingdom and was educated and qualified as a general practitioner in that country. He emigrated to Australia in 1997. He met the applicant in about 2008 while serving in the Army Reserve as a Reserve Regimental Medical Officer. Dr Gogna was deployed to Afghanistan twice, first in 2009 and then again in 2010. He has become friends with the applicant and socialises with him relatively often. In addition, he has treated the applicant on a professional basis in the past.
9 The broad topics addressed by Dr Gogna in his outline of evidence are as follows: (1) the extent to which he identified the applicant in the articles containing the matters complained of; (2) the extent to which he believes the applicant is capable of the conduct described in the matters complained of and the applicant’s personal characteristics which contribute to his good character; and (3) his observations of the applicant’s reactions to the articles containing the matters complained of.
10 The respondents have adduced evidence by way of part of an affidavit sworn by Ms Roberts in another proceeding and discovered by the applicant in these proceedings.
11 I should make it clear at this point that in relation to the evidence of Ms Roberts, and indeed other evidence referred to in these reasons, I am identifying evidence for the purposes of dealing with interlocutory applications and not making findings which will be based on all the evidence in due course.
12 In her evidence, Ms Roberts deposes to the Inspector-General of the Australian Defence Force (IGADF) commencing an investigation into alleged criminal activity by Australian Defence Force (ADF) members whilst serving in Afghanistan on 13 October 2013. She states that following the commencement of the Inspector-General’s investigation, the applicant became, at times, erratic and suffered from mood swings. According to Ms Roberts, these circumstances coincided with an increased consumption of alcohol by the applicant on a nightly basis when he was in her presence. She states that the applicant also became extremely paranoid and obsessive from mid-2017 when journalists started contacting him about allegations of war crimes. The applicant asked his friend, an ex-army doctor, Dr Gogna, to prescribe him beta blockers for excessive alcohol usage, anxiety and depression. Ms Roberts states that she is aware that the applicant did get the script for beta blockers filled, however, to the best of her knowledge he did not ever take them. Ms Roberts is aware that Dr Gogna referred the applicant to a specialist for the same issues. Ms Roberts refers to the applicant’s behaviour when intoxicated. I need not set out the details. In late 2017, Ms Roberts asked the applicant to seek professional help. The applicant agreed to do this and in December 2017, he consulted Dr Bruce Lawford seeking his assistance. Ms Roberts also deposes to her knowledge of the applicant’s affair with Person 17 and to a request the applicant made of her to lie about the applicant and Ms Roberts being separated during the affair.
13 Dr Bruce Lawford is a psychiatrist. The subpoena addressed to him is dated 12 April 2021 and seeks the production of the following class of documents:
1. All documents comprising your file relating to Ben Roberts-Smith (DOB 1 November 1978) for the period 1 December 2017 to the date of this subpoena, including all notes, reports and referrals.
14 There is no suggestion that the applicant proposes to call Dr Lawford at the trial.
15 Dr Robi Sonderegger is a clinical psychologist. The subpoena addressed to him seeks the production of the following documents:
1. All documents comprising the file at the Psychology Café relating to Ben Roberts-Smith and Emma Roberts-Smith for the period 1 October 2017 to 31 December 2018, including all notes, reports and referrals.
16 The respondents said that they believe the applicant and Ms Roberts attended marriage counselling during the period from 1 October 2017 to 31 December 2018. Dr Sonderegger was not the counsellor, but he holds the file of the Psychology Café. The respondents said that they understand that the subpoena has been answered and that there is a packet in the Registry of the Court. There is no suggestion that the applicant proposes to call Dr Sonderegger at the trial.
17 The applicant submits that the party at whose request a subpoena has been issued must demonstrate that the subpoena has a legitimate forensic purpose. He submits that the class of documents sought in the subpoenas addressed to Dr Gogna and Dr Lawford, in particular, is too wide and, on the face of it, extends to irrelevant medical information. He submits that there has been no attempt to restrict the class of documents to issues which may be relevant such as events in Afghanistan or the alleged assault on Person 17 or the damage caused by the articles containing the matters complained of.
18 The respondents advance three independent grounds upon which the class of documents sought in the subpoena addressed to Dr Gogna satisfies the test of apparent relevance. Further, they submit that the class of documents is not too wide, is not oppressive and does not/nor does it constitute fishing.
19 First, the respondents submit that as it is proposed that Dr Gogna will give evidence in support of the applicant’s case at the trial, the class of documents sought is important to test Dr Gogna’s evidence and may be relevant to his credibility. They submit that it is sufficient that the documents sought are arguably relevant, or capable of providing a legitimate basis for cross-examination on matters going to Dr Gogna’s credit. In that regard, they refer to Brand v Digi-Tech (Australia) Ltd  NSWSC 425 at  per Hunter J.
20 Secondly, the respondents submit that the documents are relevant to the credit of Ms Roberts. Ms Roberts will be called as a witness by the respondents and the applicant has indicated his intention to challenge her credit. They submit that any documentary evidence that substantiates other matters in Ms Roberts’ affidavit, which she may well be challenged on, are central to supporting Ms Roberts’ credit as a witness.
21 Finally, the respondents point to the fact that the applicant seeks damages for hurt feelings that he alleges was caused by the publication of the articles containing the matters complained of. They submit that the class of documents sought may disclose if there are any other matters which have caused distress to the applicant. They submit that it is “on the cards” that the applicant disclosed other causes of his distress to Dr Gogna, including the IGADF inquiry.
22 With respect to the class of documents sought in the subpoena addressed to Dr Lawford, the respondents rely on the second and third grounds they rely on in relation to the class of documents sought in the subpoena addressed to Dr Gogna.
23 With respect to the class of documents sought in the subpoena addressed to Dr Sonderegger, the respondents submit that the documents are not merely documents which may be relevant to credit.
24 The applicant pleads that some of the articles containing the matters complained of gave rise to the following imputations:
(1) that he committed an act of domestic violence against a woman in the Hotel Realm in Canberra; and
(2) that he is a hypocrite who publicly supported Rosie Batty, a domestic violence campaigner, when in private he abused a woman.
25 The respondents plead that these imputations are substantially true and they rely on a number of particulars, including an allegation that between about 13 October 2017 and 5 April 2018 the applicant engaged in an extra-marital affair with Person 17.
26 In his first outline of evidence, the applicant states that he and Ms Roberts-Smith were separated from about October 2017 to about April 2018 and that he had moved out of the family home. During that time, he had a relationship with Person 17.
27 In answers to interrogatories administered by the respondents, the applicant states that he separated from his wife on or about 6 October 2017 and that he reconciled with his wife on or about 10 April 2018.
28 The respondents also referred to the evidence in affidavit form of Ms Roberts to the effect that she became aware that the applicant was having an affair with a woman. The applicant advised Ms Roberts that the affair commenced on 13 October 2017 and ended on 6 April 2018. Ms Roberts states that after the affair ended, the applicant asked her to lie and say that they were separated at the time of the affair.
29 The respondents submit that it is clear from these matters there is a factual contest over a material fact articulated in the pleadings. As a subsidiary matter, the respondents submit that there is a more general contest over the credit of the applicant and Ms Roberts because their accounts diverge completely as to this particular matter. The respondents submit that the documents held by Dr Sonderegger may be capable of shedding light on that forensic contest and that the scope of the documents sought is limited to the relevant time period.
30 There was no dispute between the parties about the permissible use and scope of a subpoena to produce documents. Those principles were stated by the Full Court of this Court in Wong v Sklavos  FCAFC 120; (2014) 319 ALR 378 at . They may be summarised as follows:
(1) The party who has caused the subpoena to be issued bears the onus of establishing that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings;
(2) A subpoena to produce documents will be set aside if it is not shown that the documents sought by the subpoena have an apparent relevance to the issues raised by the pleadings. Other expressions not materially different in effect, have been used in the authorities to describe the necessary link between the documents sought by the subpoena and the issues raised by the pleadings such as the following:
(a) the documents have a bearing on an issue which is not unreal, fanciful or speculative;
(b) the documents are reasonably likely to add in some way to the relevant evidence in the case; and
(c) it is “on the cards” that the documents will materially assist the party who has caused the subpoena to be issued;
(3) A well-established principle which overlaps with the foregoing principles is that a subpoena to produce documents will be set aside if it is too wide, oppressive or constitutes fishing.
31 A subpoena to produce documents intended solely to impeach credit is not liable to be set aside on that ground alone. However, when a subpoena is sought on that basis, the Court will be careful to examine whether the subpoena has, in fact, a legitimate forensic purpose. After referring to three important authorities (Fried v National Australia Bank Ltd  FCA 911; (2000) 175 ALR 194; Liristis v Gadelrabb  NSWSC 441; Jack Brabham Engines Limited v Beare  FCA 35), Pembroke J in Thomas v SMP (International) Pty Ltd (No 2)  NSWSC 870 provided the following helpful summary of the principles (at ):
(a) As a general principle, the production of documents intended to be used solely to impeach the credit of a witness may be a legitimate forensic purpose: Fried (supra) at . It is not therefore an objection, by itself, that the subpoena seeks documents relating only to credit: Liristis (supra) at ; R v Saleam (1989) 16 NSWLR 14 at 19 (Hunt J). On the other hand, in order to support the subpoena, it is not sufficient, by itself, merely to say that the documents relate to the credit of a witness;
(b) In all cases, there must be some actual identifiable basis – reasonably precise and tolerably clear – that indicates what the legitimate forensic purpose really is. The forensic purpose requires realistic consideration of the potential strategic and evidentiary use of the documents in the context of the legal and factual issues that are required to be determined;
(c) If the subpoena is legitimate, two features of its intended forensic purpose will usually demonstrate its legitimacy. First, the particular credit issue will be capable of reasonable articulation, making due allowance for the necessity for some generalisation depending on the stage that the hearing has reached. Second, the probable connection between the documents sought to be produced and that credit issue, will be apparent;
(d) A credit issue of doubtful plausibility is unlikely to be sufficient to justify the subpoena. The same result will follow if the supposed connection between the credit issue and the documents sought, is strained, opaque or speculative;
(e) The court will exercise particular caution when a subpoena is sought to be justified solely on the credit basis: Fried (supra) at . The judge must be satisfied about the utility of the production of the documents, and the fairness to the witness, having regard to the potential for abuse and the need to control and confine cross examination within manageable limits;
(f) A subpoena that does little more than speculatively trawl for documents that may possibly be used to impugn a witness’s credit has never been justifiable: Fried (supra) at .
(see also Comcare v John Holland Rail Pty Ltd (No 5)  FCA 622; (2011) 195 FCR 43.)
32 Like a subpoena, a Notice to produce will be set aside if it is too wide, oppressive or constitutes fishing. One matter to be noted in the context of a Notice to produce is that ordinarily, the party to whom the notice was served will (as in this case) have discovery obligations with respect to the issues in the proceeding.
33 The applicant claims damages and aggravated damages from the respondents. The damages include claims for injury to the applicant’s personal and professional reputation and to his business. In his first outline of evidence, the applicant describes the significant effects of the matters complained of on his career as a public speaker and his earnings from that career. He also outlines the effect of the matters complained of on his mental health and he refers to the mental distress and severe anxiety he suffers and, in his second outline of evidence and in the context of his claim for aggravated damages, he refers to the effects of the matters complained of, as including the inducing of self-doubt.
34 The matters complained of were published in June and August 2018. According to the evidence of Ms Roberts, the IGADF investigation commenced on 13 October 2013 and the applicant became “extremely paranoid and obsessive” from mid-2017 “when journalists started contacting him about allegations of war crimes”. The applicant first consulted Dr Lawford in December 2017. In his first outline of evidence, the applicant claims that he was separated from Ms Roberts from about October 2017 to about April 2018 and if that be so, he was separated from Ms Roberts at the time he first saw Dr Lawford. The respondents asserted, and it was not expressly denied by the applicant, that he and Ms Roberts undertook marriage counselling between 1 October 2017 and 31 December 2018. The respondents plead that the alleged assault by the applicant of Person 17 took place on 28 March 2018.
35 In my opinion, the subpoena to produce documents addressed to Dr Gogna is too wide and should be set aside. The documents sought by the subpoena are the medical file for a period of nearly four and-a-half years. There are unlikely to be documents in the medical file which are relevant to Dr Gogna’s proposed evidence as to the applicant’s character or the identification of him in the articles. On the other hand, I accept that there may well be something relevant to the effects of the matters complained of on the applicant. Of course, it is possible that material which becomes relevant to Dr Gogna’s credit may be revealed, but there has been no reasonable articulation by the respondents of a particular credit issue.
36 The fact that there might be something in the documents which ultimately supports Ms Roberts’ credit is not sufficient to support the subpoena. To justify a subpoena on that type of ground would require the identification of a particular credit issue and a greater degree of certainty that such documents exist. That is not present in this case.
37 The final basis upon which the respondents sought to support the subpoena is made out, that is, that Dr Gogna is likely to have documents relevant to the applicant’s mental distress and anxiety and the causes of those conditions and those matters are relevant issues in the case. However, the subpoena is not limited to those issues (and I note that there may be other relevant issues, as the applicant’s counsel appeared to accept), and, in my opinion, as presently drafted, it is too wide and should be set aside.
38 In my opinion, the subpoena addressed to Dr Lawford stands in a different position. He is a psychiatrist and he was consulted (on the evidence before me at this particular point) because of difficulties in terms of mental health encountered by the applicant following actions and conduct based on, or linked to, events in Afghanistan. Those are relevant issues in the case. I would not set aside the subpoena addressed to Dr Lawford.
39 In my opinion, the subpoena addressed to Dr Sonderegger should not be set aside. It seeks documents which have a sufficient relevance to issues in the case, namely, the alleged separation of the applicant and Ms Roberts and the applicant’s relationship with Person 17.
Paragraph 2 of the Notice to produce served on the respondents by the applicant
40 The circumstances which led to the applicant issuing the Notice to produce were an article which appeared in The Sydney Morning Herald newspaper and The Age newspaper on or about 11 April 2021 and a segment on “60 Minutes” on or about the same date. The article addressed a number of matters relating to the applicant’s conduct, but for present purposes, the relevant aspect is certain comments made by the applicant which related to the allegations against him, his attitude to those making the allegations and the source of funds available to the applicant to meet and refute those allegations. The article stated that the applicant’s comments had been captured in covert recordings. The applicant has advised his solicitors that he believes that the covert recordings were made in 2018.
41 The Notice to produce was issued by the applicant on 20 April 2021. There then followed correspondence between the solicitors for the parties as follows.
42 On 21 April 2021, the respondents’ solicitors wrote to the applicant’s solicitors advising them that, in their view, paragraph 2 of the Notice to produce did not have a legitimate forensic purpose, that is to say, a purpose which is not unreal, fanciful or speculative. They asserted that the documents are not reasonably likely to add in some way to the relevant evidence in the case, and nor is it “on the cards” that the documents sought will materially assist the applicant.
43 On 27 April 2021, the applicant’s solicitors wrote to the respondents’ solicitors referring to an article published by the respondents on 11 April 2021 and drawing the respondents’ solicitors’ attention to the fact that in the article, the respondents have publically disclosed the contents of “surreptitiously” recorded private conversations between the applicant and others. They assert that there can be no legitimate purpose in the respondents publishing the contents of the conversations in the article, and that it is to be inferred that the respondents published the contents for the purposes of seeking to humiliate the applicant and cause him hurt. The applicant’s solicitors advised the respondents’ solicitors that the applicant relied on the publication of the article and the contents of the said conversations in support of his claim for aggravated damages in the proceedings. By further letter on the same day, the applicant’s solicitors advised the respondents’ solicitors that the recordings sought in paragraph 2 of the Notice to produce related to the applicant’s claim for aggravated damages as indicated in their earlier letter. In addition, they asserted that, to the extent that any of the subject recordings relate to any of the categories of documents for the discovery by the respondents, production of the recordings should be made on that basis.
44 On 4 May 2021, the respondents’ solicitors responded to the letters from the applicant’s solicitors. In their response, they again asserted that paragraph 2 in the Notice to produce did not have a legitimate forensic purpose. They asserted that the applicant’s claim for aggravated damages relates to the article itself and not the underlying recordings which are not relevant to the matter particularised. The respondents’ solicitors added that, for the avoidance of doubt, the respondents deny that their conduct was unjustifiable, improper or lacking in bona fides or that the applicant is entitled to aggravated damages on that basis. Further, they asserted that paragraph 2 of the Notice to produce seeks all recordings between the applicant and his associates and is not limited to the recordings referred to in the article. The respondents assert that it is not apparent that the material is reasonably likely to add to the evidence in the case or that it is on the cards that the material sought by paragraph 2 of the Notice to produce will materially assist the applicant. The respondents go on in their letter to ask the applicant’s solicitors to confirm that they do not press paragraph 2 of the Notice to produce. In the alternative, the respondents state that they will not seek to set aside paragraph 2 “if the call is limited to recordings referred in the articles”.
45 The applicant’s submissions in support of paragraph 2 in the Notice to produce were brief and to the point. There is no dispute between the parties that the recordings excerpted in the article (and actually played on 60 Minutes) should be produced. That is a correct concession (the applicant contends) because those recordings are relevant to the applicant’s claim for aggravated damages.
46 I note, and will return to this point, that what the respondents have said that they are prepared to do is produce copies of the recording extracts published in the article.
47 The applicant submits that I should infer that there are other recordings and that the respondents have those recordings only because they are relevant to the issues in the proceedings. The applicant made it clear that he does not seek production of recordings which are not relevant to an issue in the proceedings. However, he does seek the production of other recordings to the extent that they are relevant to issues in the proceedings.
48 Although the respondents maintain their position that they are prepared to produce copies of the recording extracts published in the article, they also advanced the broader position that the Notice to produce should be set aside because it has no legitimate forensic purpose. They submit that the applicant’s contention that the documents sought in paragraph 2 of the Notice to produce relate to his claim for aggravated damages is misplaced. They submit that in order to establish a claim for aggravated damages, which are a form of compensatory, not punitive, damages it must be established that some conduct of the respondents in connection with the circumstances of the publication of the matter complained of was improper, unjustifiable or lacking in bona fides and that that conduct was known to the applicant and knowledge of that conduct increased the subjective harm suffered by the applicant. The applicant’s claim for aggravated damages relates to the publication of the article and the respondents’ alleged motive for publishing the article. In particular, the purported basis for the claim for aggravated damages is said to be that there can be no legitimate purpose in the respondents publishing the contents of the conversations in the article and it is to be inferred that the respondents published the contents for the purposes of seeking to humiliate the applicant and cause him hurt.
49 While the respondents do not dispute that they published the article, they contend that the only issues for determination in relation to the applicant’s claim are whether the respondents’ conduct in publishing the article increased the applicant’s hurt, whether the alleged motive can be attributed to the respondents, and whether the respondents’ conduct was improper, unjustifiable or lacking in bona fides. The underlying recordings are not relevant to any of these issues.
50 In my opinion, the respondents should produce copies of the recording extracts published in the article because the article, including the comments attributed to the applicant, are relevant to the claim for aggravated damages. The applicant himself is entitled to consider the recordings containing the comments attributed to him. However, although I am prepared to assume that there are other recordings, I am not able to see how they are linked to the Notice to produce. It is a matter for the applicant to consider whether they can be obtained through the discovery process. As attractive as it might seem so close to trial to decide otherwise, a Notice to produce is not a process for, in effect, seeking discovery.
51 The subpoena to produce documents dated 12 April 2021 and addressed to Dr Parbodh Gogna will be set aside. The application to set aside the subpoenas addressed to Dr Lawford and Dr Sonderegger, respectively, is refused. I will hear the parties as to the appropriate order in the case of paragraph 2 of the Notice to produce served by the applicant on the respondents on 20 April 2021.
NSD 1485 of 2018
NSD 1486 of 2018
NSD 1487 of 2018