Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 22) [2021] FCA 1323

ORDERS

THE COURT ORDERS THAT:

1.    The date of 1 November 2021 fixed for the resumption of the trial be vacated.

2.    The trial resume on a date to be fixed.

3.    The matter be listed for a case management hearing at 2:15pm (AEDT) on Friday, 3 December 2021.

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 trial of these three defamation proceedings commenced in Sydney, New South Wales on 7 June 2021. The estimated length of the trial at the beginning of the trial was six to eight weeks.

2    On 29 June 2021, I adjourned the trial to 19 July 2021. By that stage, the applicant had closed his case in-chief and the respondents were due, in the ordinary course, to commence their case, involving as it does pleas of justification and contextual truth. My reasons for adjourning the trial are set out in Roberts-Smith v Fairfax Media Publications Pty Limited (No 17) [2021] FCA 764.

3    On 19 July 2021, I decided to resume the trial for the purpose of hearing the evidence of certain Afghan witnesses by audio-visual link from Kabul, Afghanistan. My reasons for that decision are set out in Roberts-Smith v Fairfax Media Publications Pty Limited (No 20) [2021] FCA 824. The evidence of three Afghan witnesses was heard during the week commencing 26 July 2021.

4    On 2 August 2021, I adjourned the trial to Monday, 1 November 2021. I also made an order that the matter be listed for a case management hearing on Friday, 1 October 2021. In my reasons for adjourning the trial, I said the following:

1    These brief reasons relate to the adjournment of the trial, a request by the applicant for an order with respect to witnesses who have been subpoenaed to give evidence at the trial and the fixing of dates for the making of closing submissions in February 2022. These reasons should be read with my reasons in Roberts-Smith v Fairfax Media Publications Pty Limited (No 17) [2021] FCA 764 and Roberts-Smith v Fairfax Media Publications Pty Limited (No 20) [2021] FCA 824.

2    There is no dispute between the parties that the trial must be adjourned for a reasonably substantial period. At one point, other means of continuing the trial were suggested. First, it was suggested that the trial might be relocated from New South Wales to another State. In a detailed letter from the Australian Government Solicitor on behalf of the Commonwealth dated 22 July 2021, the Commonwealth provided an estimate of eight to 12 weeks to replicate the current security and other arrangements in another State. Neither party pursues this option and I have already indicated that I do not consider it to be a suitable option.

3    Secondly, it was suggested that the trial may proceed hereafter with evidence given by audio-visual link. Again, in a letter from the Australian Government Solicitor on behalf of the Commonwealth dated 27 July 2021, the Commonwealth set out its position with respect to sensitive witnesses giving evidence by audio-visual link. The Commonwealth maintains that the closed Court portions of the trial could not occur by audio-visual link. Neither party pursues this option and, again, I have already indicated that I do not consider it to be a suitable option.

4    The trial must be adjourned and the only question is for how long. The respondents suggested that it be adjourned to 1 November 2021. The applicant, while stressing his desire to proceed with the case, did not argue strenuously against this date. In any event, I consider that it is appropriate to adjourn the trial to 1 November 2021. The stay at home order is in place until the end of August 2021 and there is at least a reasonable possibility that it will be extended for a period thereafter. Even after the stay at home order has ceased to operate, it is necessary to build in a period before interstate borders are opened.

5    There is also a need for certainty, or as much certainty as possible, as to the date of the resumption of the trial. There are potentially many witnesses still to be called in this trial and the logistical arrangements for these witnesses are substantial. The respondents indicate that they propose to call in the order of 24 witnesses, of whom some 19 are interstate, with a not insignificant number in Western Australia. The applicant has given notice that he may call 19 witnesses in reply to the defence of justification.

(Roberts-Smith v Fairfax Media Publications Pty Limited (No 21) [2021] FCA 893.)

5    At the case management hearing on 1 October 2021, the applicant sought a short period within which to issue an interlocutory application seeking an order for the relocation of the trial to Adelaide, South Australia. The respondents sought an order that the trial be adjourned to Monday, 28 February 2022. I made the following orders, relevantly:

1.    By 4pm (AEDT) on 6 October 2021:

a)    the applicant file and serve any interlocutory application (the applicant’s interlocutory application) and evidence in support in relation to the relocation of the hearing; and

b)    the respondents file and serve any further evidence in support of their application to vacate the resumed hearing date of 1 November 2021 and fix 28 February 2022 as the resumed hearing date (the respondents’ application).

2.    By 4pm (AEDT) on 8 October 2021:

a)    the respondents file and serve any evidence in reply to the applicant’s interlocutory application; and

b)    the applicant file and serve any evidence in reply to the respondents’ application.

3.    By 4pm (AEDT) on 11 October 2021, the Commonwealth file and serve any evidence in reply to the applicant’s interlocutory application and the respondents’ application.

4.    By 4pm (AEDT) on 13 October 2021:

a)    the applicant file and serve submissions in relation to the applicant’s interlocutory application; and

b)    the respondents file and serve submissions in relation to the respondents’ application.

5.    By 4pm (AEDT) on 14 October 2021:

a)    the respondents and the Commonwealth file and serve submissions in relation to the applicant’s interlocutory application; and

b)    the applicant and the Commonwealth file and serve submissions in relation to the respondents’ application.

6.    The applicant’s interlocutory application and the respondents’ application be listed for hearing at 2:15pm (AEDT) on Friday, 15 October 2021.

The Applicant’s Interlocutory Application

6    On 6 October 2021, the applicant filed an Interlocutory application in which he sought the following orders, relevantly:

1.    The hearing resume in Sydney commencing on 8 November 2021 for the purpose of hearing evidence in person from the following persons:

a.    Person 1;

b.    Person 2;

c.    Person 10;

d.    Person 21 (by AVL);

e.    Person 69;

f.    Mr Tony Samuel.

2.    The remainder of the hearing be conducted in person in Adelaide commencing on 6 December 2021 until 22 December 2021 and resume on 24 January 2022 until 11 February 2022.

I make the observation at this point that, assuming the parties call the witnesses they have identified, it is unlikely the trial will be completed in the periods specified in paragraph 2.

7    I heard submissions from the parties on the applicant’s Interlocutory application and more generally on the resumption of the trial on 15 October 2021 and at the conclusion of the hearing I said the following:

... I will deliver reasons for this ruling in the near future. My principal conclusions are as follows:

(1)    The date for the resumption of the trial on 1 November 2021 be vacated, and the trial be adjourned to a date to be fixed.

(2)    There is no sufficient benefit in resuming the trial for a relatively short period, beginning on 8 November 2021.

(3)    Having regard to all the evidence, I’m not persuaded that I should make an order relocating the hearing to South Australia.

(4)    I fix Friday, 3 December 2021, at 2.15 pm Australian Eastern Standard Time for a further case management hearing.

(5)    I do not propose to fix a date for the resumption of the trial. It seems to me the circumstances are too uncertain for me to do that. As I indicated to the parties in the course of submissions, I wish to have the option of resuming the trial on or at some time after 17 January 2022, should the circumstances indicate that that is the appropriate course, having regard to the interests of the parties and the administration of justice[.]

(6)    The parties have liberty to apply on 48 hours[’] notice.

I adjourned the hearing to 3 December 2021 at 2:15pm (AEDT). These are my reasons for those conclusions and orders.

8    The evidence read at the hearing was as follows:

(1)    Applicant: Affidavits of Monica Helen Allen, solicitor, sworn on 3 April 2020 (relied upon on a previous application) and 13 October 2021 respectively; affidavit of Paul Victor Svilans, solicitor, sworn on 6 October 2021;

(2)    Respondents: Two affidavits of Dean Aaron Levitan, solicitor, affirmed on 30 September 2021 and 8 October 2021 respectively; and

(3)    Commonwealth of Australia: Two affidavits of Kirsty Alexander, solicitor, affirmed on 11 October 2021 and 14 October 2021 respectively.

9    It is not necessary for me to summarise the evidence in all of its detail. It is sufficient to note the following:

(1)    Mr Levitan’s affidavit affirmed on 30 September 2021, indicates that the respondents propose to call witnesses from different States and Territories as follows:

(a)    New South Wales: six witnesses;

(b)    Western Australia: nine witnesses;

(c)    Victoria: two witnesses;

(d)    Queensland: seven witnesses; and

(e)    Australian Capital Territory: one witness.

Mr Levitan gives evidence about vaccination rates, border controls and his contact with 20 of the respondents’ witnesses and their responses to questions about whether they would be prepared to travel to New South Wales to give evidence should they not be able to return to their home State, or only return on terms that they are required to self-isolate or quarantine on their return. Of particular significance, in terms of the adjournment that the respondents are seeking, is the observation by the Premier of Western Australia in one of the annexures that that State’s hard border may not be lifted until February, March or April 2022.

Mr Levitan’s affidavit affirmed on 8 October 2021 addresses the applicant’s application to relocate the trial to Adelaide, the attendant expenses of doing that and the potential difficulties associated with witnesses in Western Australia travelling to South Australia. As to this last matter, the Premier of Western Australia is reported as saying that if there is community spread of the COVID-19 virus in South Australia, “… obviously we’d take health advice, but most likely we would close to that jurisdiction”.

(2)    Ms Allen’s affidavit sworn on 3 April 2020 addresses the continuing publication by the respondents of matters of and concerning the applicant and the impact on the applicant of the matters complained of and the more recent publications. The affidavit was relied on in relation to an earlier application in this proceeding and the effects on the applicant of the publications are described in my reasons for judgment in relation to that earlier application (Roberts-Smith v Fairfax Media Publications Pty Limited (No 4) [2020] FCA 614 at [17]). Ms Allen’s second affidavit sworn on 13 October 2021 addresses the willingness of three witnesses in Western Australia whom the applicant proposes to call at the trial, to attend at the hearing providing they can return to Perth, albeit that they will be required to self-quarantine on their return. It also addresses predictions set out in various newspaper articles as to when the States and Territories of Australia will achieve 80% double dose COVID-19 vaccination.

Mr Svilans’ affidavit sworn on 6 October 2021 addresses the following topics: (1) the chronological history of the proceedings with an emphasis on delays caused by the COVID-19 pandemic; (2) the Australian Government’s National Plan to transition Australia’s COVID-19 response with predications as to when the various States and Territories are likely to achieve 70% of people 16 years of age and over who have had two doses of a COVID-19 vaccine and 80% of people 16 years of age and over who have had two doses of a COVID-19 vaccine; (3) an announcement by the Premier of South Australia reported in The Australian newspaper on 12 September 2021 that the South Australian border will open to New South Wales, Victoria and the Australian Capital Territory once South Australia achieves 80% double vaccination; (4) broadly, the evidence to be given by the witnesses who are the subject of the applicant’s application for the trial to resume in Sydney on 8 November 2021; (5) the ongoing effects of the proceeding on the applicant, including with respect to his accommodation and employment; and (6) the respondents’ ongoing publication of matters of and concerning the applicant.

Mr Svilans also identifies the location of the witnesses the applicant proposes to call in response to the respondents’ pleas of justification and contextual truth as follows:

(f)    Western Australia: three witnesses;

(g)    Queensland: six witnesses;

(h)    Victoria: one witness;

(i)    Australian Capital Territory: one witness;

(j)    New Zealand: one witness;

(k)    United States: two witnesses;

(l)    United Kingdom: two witnesses; and

(m)    United Arab Emirates: one witness.

(3)    The Commonwealth’s affidavits are addressed to the time the Commonwealth would need to replicate in Adelaide the security, closed court and other arrangements it has established in Sydney for the conduct of this trial.

Ms Alexander states the following in her first affidavit affirmed on 11 October 2021:

17.    A range of restrictions apply to the disclosure, protection, storage, handling and destruction, in the proceedings, of information and documents constituting or containing national security information within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act). Those restrictions arise pursuant to orders agreed between the parties and made by his Honour Justice Besanko under s 38B(2) of the NSI Act on 15 July 2020, most recently amended on 12 July 2021 (s 38B Orders).

18.    The s 38B Orders give effect to arrangements agreed between the parties and the Attorney-General on behalf of the Commonwealth pursuant to s 38B(1) of the NSI Act. As has been addressed in the various written submissions and evidence prepared by the Commonwealth in support of proposed s 38B Orders or amendments to them, the agreed arrangements are directed to ensuring the appropriate protection of national security information.

19.    I am aware that the parts of the s 38B Orders which deal with the storage and handling of national security information, as well as aspects of the communication arrangements, are based upon the requirements set out in Part 2 of the National Security Information (Criminal and Civil Proceedings) Regulation 2015 (Cth) and the Commonwealth Government’s Protective Security Policy Framework (PSPF).

20.    On 6 July 2020, I affirmed an affidavit in these proceedings which annexed copies of the PSPF’s 16 core requirements, supporting requirements and associated guidance material (my July 2020 affidavit). A copy of that affidavit is reproduced at annexure KA-9 to this affidavit.

21.    In paragraph [14] of my July 2020 affidavit, I set out a number of administrative arrangements I was instructed would be required to facilitate the production of sensitive documents to the Court and parties in accordance with the s 38B Orders then proposed.

Ms Alexander then outlines the detailed logistical and security arrangements which would need to be put in place in Adelaide before the trial could resume. Her evidence is to the effect that the Commonwealth’s best estimate as to when the trial could resume in Adelaide is 8 to 12 weeks from the date of a relocation order. On those estimates, if I had made an order for the relocation of the trial to Adelaide on 15 October 2021, the trial could not resume in Adelaide before the middle of December 2021 or the middle of January 2022. Even then, there are contingencies which could extend the estimate of 8 to 12 weeks should there be restrictions on Commonwealth officers travelling to Adelaide to implement aspects of the necessary logistical and security arrangements. For example, this includes officers travelling to Adelaide to inspect and re-inspect premises.

I should add that there are matters other than security arrangements which would need to be replicated in Adelaide. An example is the “24/7” welfare support service in Sydney for Sensitive Witnesses and other Special Operations Command members who may require support during the hearing.

In her second affidavit affirmed on 14 October 2021, Ms Alexander says that she has made inquiries of the provider of closed court transcription services and the response she received was that that provider did not consider that they would be able to deploy adequate resources to provide recording and transcription services for the closed court transcript should the proceedings be moved to Adelaide. In those circumstances, the Commonwealth would need to explore alternative arrangements for the preparation of the closed court transcript.

10    In addition to the evidence, I received detailed and helpful written submissions from the parties and from the Commonwealth.

11    In his Interlocutory application, the applicant seeks a resumption of the trial in Sydney on 8 November 2021 to hear evidence from five or six witnesses and then relocation to Adelaide. The respondents provided an estimate of hearing time of two to three days with respect to the five or six witnesses, whereas the applicant’s estimate is seven days. Doing the best I can, I proceed on the basis that the correct estimate is somewhere between these two estimates.

12    The respondents opposed the orders sought by the applicant and asked that the trial be adjourned to 28 February 2022.

13    The Commonwealth took no position with respect to the orders sought by the parties. It contended that the estimate of 8 to 12 weeks from the time it is confirmed that the trial is to be relocated to Adelaide remained the Commonwealth’s best estimate as to the time it would require to complete the steps necessary because of the national security considerations attending the resumption of the trial.

General Remarks

14    It is in the interests of all parties that this trial resume as soon as circumstances reasonably permit. The applicant and the respondents seek the resumption of the trial and its completion as soon as is reasonably possible. To this point, the delays in the trial have been the result of the COVID-19 pandemic and the intra-state restrictions in New South Wales and border closures and restrictions in the various States and Territories that are the result of the pandemic. Even if it was otherwise appropriate to hear evidence by audio-visual link, that is not possible in relation to a number of witnesses because the closed court part of their evidence involving sensitive information, sensitive documents, other identifying information and national security information cannot be conducted by audio-visual link (National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (the Act); Orders of the Court made under s 38B(2) of the Act on 12 July 2021).

15    I have had regard to all the evidence put before the Court. I note counsel for the applicant’s submission that the applicant is anxious for the trial resume as soon as possible and his reference to the effects of the delay on the applicant. I note the respondents’ submission as to the date upon which the trial should resume and the circumstance that, on current estimates, 12 of the witnesses will be coming from Western Australia and the reported statement of the Premier of that State that its hard border may not be lifted until February, March or April 2022.

16    I accept the Commonwealth’s detailed and clear evidence about the time needed to replicate arrangements in Adelaide. It seems to me that the reality is that even if I had made an order for relocation on 15 October 2021, the trial could not resume in Adelaide before mid to late January 2022.

17    On current estimates, if each party calls the witnesses they presently propose to call, there will be a further 42 witnesses. Of course, they may not call all of those witnesses if foreshadowed evidence is not given, or if evidence is not challenged, or if matters are agreed, but that it is the present position.

The Resumption of the Trial in Sydney on 8 November 2021

18    If the trial was resumed on 8 November 2021 in Sydney, it would be for a relatively short period. As I have said, my estimate is in the order of five days. The evidence of five, possibly six, witnesses could be heard. There is uncertainty about whether the evidence of Person 2 could be heard. He is based in Brisbane, Queensland and has indicated that he is not prepared to travel to New South Wales if he has to quarantine in a hotel upon his return. He has family and work commitments. Furthermore, as I understand it, there is doubt about whether he could give all of his evidence by audio-visual link because of the need to move into closed court.

19    While there is a benefit in dealing with the witnesses that can be dealt with, it will not result in the completion of the trial, or even the bulk of the outstanding evidence as presently foreshadowed by the parties. Such benefit as there may be is outweighed by the disadvantages in proceeding this way. Those disadvantages are as follows: (1) at least one of the witnesses is in regional New South Wales and, at the time of the hearing on 15 October 2021, the date for regional travel has been adjusted to 1 November 2021 due to different vaccination cover in the regions; (2) the need for fairly substantial resources to be devoted to the resumption of the trial for a relatively short period by the parties and by the Court; and (3) interstate participants who need to travel to New South Wales may be required to quarantine upon their return to their home States. Those participants include people from Victoria, Queensland and South Australia.

The Relocation of the Trial to Adelaide

20    As I have said, I accept the evidence put forward by the Commonwealth as to the time required to replicate the necessary arrangements in Adelaide and a realistic estimate of when the trial could resume in Adelaide, had I made a relocation order on 15 October 2021, is mid to late January 2022. There is no certainty, in fact there is considerable uncertainty, as to the restrictions likely to be in place at that time for witnesses returning to their home State or Territory from Adelaide compared to those returning from Sydney. That might depend on what happens between now and then in terms of border restrictions between South Australia and New South Wales, and between South Australia and Western Australia.

21    I would only make an order for relocation of the trial if I was satisfied that there was a reasonably clear and certain benefit in doing so. In the circumstances, I was not satisfied that that was the case.

When Should the Trial Resume?

22    The level of uncertainty about restrictions generally and border closures and restrictions was, at the time I made the orders (and remains), very high. It seemed clear enough that the trial could not resume this year. In saying that, I proceeded on the basis that the trial should resume only when it is reasonably clear that it can proceed to conclusion largely without further interruption. It is possible that the trial could resume early in the new year. It seemed to me important, at least, to maintain that option and I raised with the parties the prospect of the trial resuming on 17 January 2022. However, circumstances were too uncertain to suggest that that date should be fixed. I decided that I would hold another case management hearing on 3 December 2021 and at that time I will consider fixing a date for the resumption of the hearing. I make the point, obvious though it may be, that in the rapidly changing circumstances assumptions made at one point in time may not be appropriate at a later point in time.

23    It was for these reasons I made the orders I did on 15 October 2021.

Associate:    

Dated:    29 October 2021

SCHEDULE OF PARTIES