Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 45) [2023] FCA 1474

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay the respondents’ costs of the proceedings, assessed on an indemnity basis.

2.    The costs of the respondents’ Interlocutory application dated 25 March 2022 (Roberts-Smith v Fairfax Media Publications Pty Limited (No 32) [2022] FCA 419) and the respondents’ Amended Interlocutory application dated 8 April 2022 (Roberts-Smith v Fairfax Media Publications Pty Limited (No 33) [2022] FCA 420) be costs in the proceedings.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    My principal reasons in relation to the three defamation proceedings brought by the applicant against three media organisations and three journalists are to be found in Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555. A knowledge of at least the principal conclusions in those reasons is presumed for the purposes of these reasons. The order which I made in each proceeding was that the proceeding be dismissed. The respondents in each proceeding have issued an Interlocutory application seeking various orders, including an order that their costs be paid by the applicant on an indemnity basis. The application is supported by an affidavit of Mr Peter Bartlett who is the respondents’ principal solicitor.

2    Each proceeding was commenced in August 2018 and in each proceeding, the respondents served a Notice of offer of compromise dated 17 March 2020 on the applicant. In that document, the respondents offered to compromise the proceedings on the basis that an existing costs order in favour of the respondents against the applicant (to be assessed and taxed) would be waived by the respondents, each party would otherwise bear their own costs, and the proceeding would be dismissed. The applicant accepts that that offer in each proceeding is effective and that he must pay the respondents’ costs on an indemnity basis from 11 am on 18 March 2020 (see r 25.4 of the Federal Court Rules 2011 (Cth)). However, he contends that he is only liable for the respondents’ costs on a party and party basis prior to that time.

3    The first and principal issue between the parties is whether the applicant should pay the respondents’ costs assessed on an indemnity basis from the commencement of the proceedings in August 2018 to their finalisation, although because of the effect of the offer dated 17 March 2020 as conceded by the applicant, the critical period in practical terms is the period from the commencement of the proceedings to 18 March 2020. The respondents’ argument that he should do so is based on the applicant’s knowledge of the truth of a number of the imputations from the commencement of the proceedings and thereafter and certain findings that I made in the principal reasons.

4    The second issue is an alternative argument put by the respondents. They contend that in the event they are not entitled to indemnity costs from the date of the commencement of the proceedings, they are entitled to indemnity costs from on or about 11 June 2019. The basis of that contention is an offer made by the respondents to the applicant on 11 June 2019 to settle each proceeding. That offer was conveyed in a Calderbank letter and it was an offer to resolve each proceeding on the basis that the applicant would discontinue the proceeding and release the respondents from any liability arising from the series of articles about the applicant and that each party would bear its own costs.

5    The third issue concerns the costs of two Interlocutory applications which were heard and determined by another judge of the Court (Abraham J). Each application was made by the respondents and was to inspect, uplift and copy documents over which the applicant claimed legal professional privilege. The respondents claimed in each application that the documents were not protected by legal professional privilege because there was a prima face case that they were created in furtherance of a fraud. In the application involving Person 27, there was an additional argument advanced by the respondents that there had been a waiver of privilege. Each application followed the service of a Notice to produce on the applicant by the respondents and, in the case involving Person 27, there was in addition a Subpoena to produce documents directed to Person 27. In each case, the judge dismissed the application. Her Honour referred the question of costs to me as the trial judge. That was done because, as I will explain, the subject matter of the application was addressed in the principal reasons. The respondents submitted that they should have the costs of those applications in light of certain findings I made in the principal reasons, even though they were unsuccessful in each application. The applicant, on the other hand, submitted that the proper order was that each party bear their own costs.

Whether an order should be made that indemnity costs be paid by the applicant from the commencement of the proceedings in August 2018

6    The respondents’ principal submission in support of such an order is that it should be made because the applicant has at all times known that Imputations 1, 2, 3, 4, 5, 6, 9, 10, 11, 12 and 14 were substantially true and that contextual truth applied in the case of the other imputations. That, it is said, is sufficient to form the basis of an order for indemnity costs. In this context, the respondents point out that, although there is no onus on the applicant to prove the falsity of the imputations, the fact is in the Statement of Claim in each proceeding the applicant claimed aggravated damages and one of his particulars of the claim for aggravated damages was alleged to be his knowledge of the falsity of the imputations. The respondents submit that far from establishing his knowledge of the falsity of the imputations, the applicant has known from the outset that a number of the imputations are substantially true.

7    The respondents quite fairly acknowledged a number of matters in the course of their submissions. They accepted that the imputations arising from the publications were very serious and that the onus of proving substantial truth or contextual truth was at all times on them. It might also be said in this context that it would be fair to assume that there was some uncertainty right up to and including the trial about the witnesses who would or might apply to have their subpoena set aside and the witnesses who might successfully invoke the privilege against self-incrimination and with respect to what matters. Furthermore, the respondents acknowledged and, as I said in the principal reasons (at [117]–[118]), it is the case that disbelief of the evidence of the party who does not bear the onus of proof, does not in general establish the contrary. It is for the party carrying the onus to discharge it (Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 at [60]).

8    There are many cases dealing with the circumstances in which this Court may exercise the power in s 43 of the Federal Court of Australia Act 1976 (Cth) to award costs on an indemnity basis. With respect, in Barrett Property Group Pty v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823 (Barrett Property Group v Metricon Homes (No 2)) Gilmour J provided a helpful summary of the relevant principles which, together with the other cases to which I refer, is sufficient for present purposes. His Honour said (at [3], [4] and [5]):

3    An award of costs is in the discretion of the Court or Judge except as provided by any other Act: Federal Court of Australia Act s 43(2). The discretion must be exercised judicially. In the normal course, costs are ordered to be paid on a party and party basis: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 232; Re Wilcox; Ex parte Ventura Industries Pty Ltd (No 2) (1996) 72 FCR 152 at 158 per Cooper and Merkel JJ. A costs order is not intended to punish the unsuccessful party but rather to compensate the successful party: Hurst and Devlin v Education Queensland (No 2) [2005] FCA 793 at [5]. This is so even where the ordinary practice is departed from. The aim is not to punish or deter future litigants but simply to compensate a party fully for costs which normal party-party costs could not be expected to do, where it was unreasonable for that party to be subjected to any expenditure of costs, such as where a hopeless proceeding is brought: Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4]-[5]. Any departure from this general rule requires a special reason: Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10]; Pacific Publications Pty Ltd v Next Publishing Pty Ltd [2005] FCA 971 at [5]. The categories in respect of which departure from the usual rule are contained are not closed: John S Hayes & Associates Pty Limited v Kimberley-Clarke Australia Pty Limited (1994) 52 FCR 203; Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 at [32].

4    In Colgate-Palmolive, (at p 233) Sheppard J identified various categories which might give rise to an award of indemnity costs. These include:

•    the making of allegations of fraud knowing them to be false, and the making of irrelevant allegations of fraud;

•    evidence of particular misconduct that causes loss of time to the Court and to other parties;

•    the commencement or continuation of proceedings for an ulterior motive;

•    wilful disregard of known facts or clearly established law;

•    the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions; and

•    an imprudent refusal of an offer to compromise.

5    Whatever the case, the Court should not make such an order for costs unless there is some clear basis or “some special or unusual feature in the case”: Pacific Publications at [5].

9    The fact that it was for the respondents to prove the truth of the imputations and not for the applicant to prove the falsity of the imputations is not decisive in terms of awarding indemnity costs. This point was made by McCallum J, with whom Basten JA and Sackville AJA agreed, in Farrow v Nationwide News Pty Ltd [2017] NSWCA 246; (2017) 95 NSWLR 612 where her Honour said (at [35]):

The submission that a plaintiff’s imputation does not “challenge” anything is technically correct in that falsity of an imputation is not an element of the cause of action. All a plaintiff is required to establish is that the matter complained of was published and that it conveyed a defamatory imputation; truth is a defence. It does not follow that a plaintiff can properly institute an action seeking damages for a defamatory imputation he or she knows to be true. In my respectful opinion, it is manifestly an abuse to invoke the court’s process to obtain a remedy to which the applicant is indisputably not entitled or else put a defendant to proof of that which cannot be denied.

Her Honour held that, in the circumstances of that case, the institution of proceedings was an abuse of process because the proceedings sought a remedy for the applicant on the strength of imputations, the truth of which could not properly be controverted by her (at [38]).

10    An aspect or element of this category of cases in which indemnity costs may be awarded is that a Court may do so where the unsuccessful party has falsely and deliberately concocted his or her evidence (Degman Pty Ltd (in liq) v Wright (No 2) (1983) 2 NSWLR 354).

11    It is true, as the applicant submitted, that each case depends upon its own facts and that a finding that a witness has fabricated his or her evidence does not of itself lead to a conclusion that the party who called the witness must pay indemnity costs. In Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1866 (Walker v Citigroup Global Markets), Kenny J said the following (at [31] and [32]):

31    Further, it cannot properly be said that the respondents should have known that they had no chance of defending the claim made against them in contract. Their case was that there was no binding contract because: (i) there was no acceptance of the offer; (ii) the offer did not contain an essential term; (iii) there was no implied term that the applicant would commence his employment within a reasonable time; and (iv) if there was an implied term that he would commence within a reasonable time, this term was breached. Whilst the respondents failed to make out these defences, the defences were not so hopeless that the respondents should have known that they had no prospects of success. My finding as to the existence of a contract was based on my findings of fact, which were the subject of conflicting evidence; and the respondents did not rely solely on Mr Fulton’s testimony. Ultimately, in light of all the evidence, I preferred the evidence adduced by the applicant to that of the respondents, including Mr Fulton, for the reasons I have already given. Notwithstanding the view I formed of Mr Fulton’s evidence, taking the case as a whole, I would not conclude that the respondents should have known that they had no prospects of success.

32    Before turning to the applicant’s second argument in support of an indemnity costs order, I would say something of Mr Fulton’s evidence since the applicant placed some store by it. In Walker (No 1), I found Mr Fulton to be an unreliable witness. For example, I found that he had fabricated some of his evidence to support the respondents’ case: see, e.g., Walker (No 1) at [55]. This is a consideration that militates in the applicant’s favour. Nevertheless, when the matters referred to above are borne in mind and considered in the context of the entire proceeding, I do not find that the conduct of Mr Fulton takes this case far enough outside the ordinary range of cases to justify indemnity costs.

12    In the case I referred to earlier of Barrett Property Group v Metricon Homes (No 2), Gilmour J considered the approach of Kenny J in Walker v Citigroup Global Markets and contrasted that case with the case before him. His Honour noted that Kenny J said that in the context of the entire proceeding the conduct of the particular witness did not take the case so far outside the ordinary range of cases as to justify an award of indemnity costs and that in the end, that was a matter of judgment by Kenny J upon the particular facts before her Honour. By contrast, in the case before him, Gilmour J had made findings that there was a conscious and deliberate effort on the part of the respondents to mislead the Court on two matters which were of central importance in the case and that had those attempts to mislead been successful, it would have seen the case determined in favour of the respondents (at [13]). His Honour also noted that particular facts and findings relating to the evidence illustrated a determined effort on the part of the respondents and their witnesses to establish a defence on one of the central issues in the case which they knew to be false. His Honour noted that it was left to the forensic efforts of the applicants’ solicitors and counsel and some belated and limited concessions by the witnesses during their oral evidence that led to the attempts to mislead the Court being exposed (at [14]). His Honour said that the result of this was that very significant costs were incurred by the applicants, both in the preparation for, and the conduct of, the trial which ought never to have been required (at [15]).

13    His Honour considered that there was sufficient in the circumstances to take the case out of the ordinary and he explained his decision as follows (at [16]):

… This is not a case where merely arguments ‘attended by uncertainty’ were before the Court as in Hamod [20]. It is not a case involving witnesses who gave evidence believing it to be true but as to which they were mistaken. It is not a case where judgment depended essentially upon the inherent probabilities of one version of events against another but not involving questions of credit. It is not even a case, such as Walker, where one witness gave fabricated evidence as to part of a case. This matter involved a concerted effort on the part of four key witnesses to present a false defence which has led to the applicants incurring very considerable costs over a long period in meeting and overcoming that defence …

In this case, it follows from the findings I made in the principal reasons that the applicant knew that a number of the serious imputations were, by reason of events on the missions to W108, Darwan and Chinartu respectively, substantially true.

14    For his part, the applicant referred to the decision of the Full Court of this Court in LFDB v SM (No 2) [2017] FCAFC 207 for a statement of the general principles. The Court said (at [7]):

When it comes to the respondent’s submission, the principles guiding the exercise of the discretion to make a special costs order can be shortly stated. It is trite that the Court has a broad power to award costs, including indemnity costs, under s 43 of the Federal Court of Australia Act 1976 (Cth) (Act). It has often been remarked that the discretion as to costs is unfettered, but in exercising the discretion to award costs, s 37N(4) of the Act requires the Court to take account of any failure by a party to comply with the overarching purpose of the civil procedure provisions, namely to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: see s 37M(1). An award of indemnity costs is not a punitive measure, but is designed for “compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs”: Hamod v New South Wales [2002] FCAFC 97; (2002) 188 ALR 659 at 665 [20] (Gray J, Carr and Goldberg JJ agreeing). Consistently with facilitating the overarching purpose, such circumstances may include where a proceeding is unduly prolonged by groundless contentions: see Ragata Developments Pty Limited v Westpac Banking Corporation at 7, 8 (unreported, Davies J, 5 March 1993), and more generally Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (No 2) [2017] FCAFC 116 at [3]-[5] per Jagot, Yates and Murphy JJ. 

15    The applicant referred to the decision of the Full Court of this Court in Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (No 2) [2017] FCAFC 116 where the Court said (at [5]):

In broad terms an order for indemnity costs requires that some special or unusual feature arises: Cirillo v Consolidated Press Property Ltd (formerly known as Citicorp Australia Ltd) (No 2) [2007] FCA 179 at [3] (Finn J). Indemnity costs are not punitive but are designed for “compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs”: Hamod v New South Wales (2002) 188 ALR 659 at 665 (Gray J, with whom Carr and Goldberg JJ agreed). Such circumstances may include where allegations are made “which ought never to have been made”, where the case is “unduly prolonged by groundless contentions” (Ragata Developments Pty Ltd v Westpac Banking Corporation [1993] FCA 115 at [15], [17] (Davies J)), and where “the applicant, properly advised, should have known that he had no chance of success” (Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401 (Woodward J)) or “persists in what should on proper consideration be seen to be a hopeless case” (J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) (1993) 46 IR 301 at 303 (French J)).

16    The matters which the applicant emphasised were as follows. The power to award indemnity costs does not exist to punish the losing party, an important consideration is whether there has been unreasonable conduct which has prolonged the proceedings, and in exercising the power it is important to consider carefully the particular features of the case. The applicant submitted that an important feature of this case is that the applicant is and remains entitled to the presumption of innocence and he has not to this point been convicted by a court of any war crime or crimes. Furthermore, the imputations involve extremely serious allegations.

17    The applicant referred to the chronology of events at or about the time the proceedings were commenced in August 2018. He did so by reference to reasons for judgment of Bromwich J in Roberts-Smith v Fairfax Media Publications Pty Ltd [2018] FCA 1943 and that is a convenient way of introducing the submission. His Honour said (at [7]–[10]):

7    Mr Roberts-Smith commenced proceedings in this Court on Friday, 10 August 2018 by way of an originating application, an interlocutory application seeking urgent interim relief and a supporting affidavit of Mr Mark Geoffrey O’Brien affirmed 10 August 2018, which was accompanied by an exhibit described as Confidential Exhibit MOBL-1.

8    By way of his originating application, which is still on foot despite the subsequent defamation proceedings that have been commenced, Mr Roberts-Smith relevantly seeks the following substantive relief (emphasis in original):

1.    A declaration that in publishing the whole or part of the article entitled “Beneath the bravery: the dark secrets of our most decorated soldier” (Article) or a substantial copy of that Article, the Respondents have directly or indirectly acted contrary to a direction given by the Inspector-General of the Australian Defence Force pursuant to regulation 21 of the Inspector-General of the Australian Defence Force Regulations.

2.    Further and/or in the alternative to prayer 1, a declaration that in publishing the whole or part of the Article, the Respondents have published information known by officers, servants or agents of the Respondents to be:

(a)    confidential to the Commonwealth of Australia;

(b)    have been disclosed to the Respondents in breach of the statutory and equitable obligations of confidence applicable to the unidentified officers, servants and agents of the Commonwealth of Australia who have disclosed such information to them.

3.    A declaration that in publishing the whole or part of the Article, or a substantial copy of that Article, the Respondents have disclosed the contents of “official reports” sighted by the officers, servants or agents of the Respondents, contrary to regulation 21 of the Inspector-General of the Australian Defence Force Regulations.

4.    Further and/or in the alternative to prayer 3, a declaration that in publishing the whole or part of the Article, the Respondents have published information known by officers, servants or agents of the Respondents to be:

(a)     confidential to the Commonwealth of Australia;

(b)     have been disclosed to the Respondents in breach of the statutory and equitable obligations of confidence applicable to the unidentified officers, servants and agents of the Commonwealth of Australia who have disclosed such information to them.

5.    Such further or other orders as this Court deems appropriate.

9    Late on the afternoon of Friday, 10 August 2018, Mr Roberts-Smith sought an urgent hearing of his interlocutory application for interim relief, which I heard as duty judge. That application, which relied upon Mr O’Brien’s 10 August 2018 affidavit and Exhibit MOBL-1, relevantly sought orders:

(1)    restraining the respondents from publishing in print the article referred to in [1] of Mr Roberts-Smith’s originating application;

(2)    requiring that the online publication of the article be taken down; and

(3)    restraining the respondents from publishing or disclosing any article or information that would be contrary to the direction given pursuant to reg 21(1) of the IGADF Regulation, that was confidential to the Commonwealth, or that had already been disclosed to the respondents in an asserted breach of statutory and equitable obligations of confidence imposed upon officers, servants or agents of the Commonwealth.

10    Later on the night of Friday, 10 August 2018, I dismissed Mr Roberts-Smith’s interlocutory application, not being satisfied that the balance of convenience favoured the grant of the relief sought. During that process, at the oral request of senior counsel for Mr Roberts-Smith, I made interim suppression orders over the publication of Exhibit MOBL-1, limiting its access to the external solicitors and counsel for the first respondent, Fairfax. I granted Fairfax liberty to apply to lift or vary that interim suppression order.

18    The way in which the applicant’s counsel put the matter was to say that the applicant was then faced with a choice. He could commence proceedings “to protect his rights in relation to the matter” or he could allow the publications to continue and “trash his presumption of innocence”. As I understood the submission, it was that absent a criminal charge, he was not protected from the respondents’ publications or further publications by the law of contempt. It is true that the applicant was being accused of being a war criminal, but none of the matters identified diminish the force of the respondents’ point that the applicant knew that a number of the imputations were substantially true.

19    The applicant also pointed to the fact, as I have said, acknowledged by the respondents, that the respondents bore the onus of proof and that onus was a heavy one and the fact that, in general, disbelief of the applicant’s evidence did not establish the contrary. Furthermore, the applicant submitted that the respondents’ failure to establish the allegations of murder at Syachow and at Fasil and the allegation of domestic violence points away from an order for indemnity costs. The applicant pointed out that the fact that a witness was found to have fabricated evidence did not automatically lead to an order for indemnity costs and in that context he referred to Walker v Citigroup Global Markets.

20    The applicant submitted that the cases which refer to the fabrication of evidence link that circumstance to a prolongation of the proceedings and that, in this case, the applicant did not prolong the proceedings. The applicant gave his evidence. The respondents called evidence in support of its substantial truth and contextual truth allegations and the applicant called his evidence in response. The proceedings were not unreasonably or unnecessarily prolonged.

21    In my opinion, the applicant should pay the respondents’ costs assessed on an indemnity basis from the commencement of the proceedings. There is a proposition which lies at the heart of the application for indemnity costs in the circumstances of this case. It is that the relevant question is not whether there was some prospect of success by reason of there being some prospect of persuading the Court to accept facts known to be false. As the respondents put the matter, in my opinion correctly, the answer to the question of what a party, properly advised, ought to have appreciated must be based on an assumption as to the true facts known to the party. The applicant knew what had occurred at W108, Darwan and Chinartu. He knew that that would be sufficient to establish the substantial truth of the most serious imputations and that that would be sufficient to lead to the dismissal of the proceedings he brought. The fact that the power to award indemnity costs is not designed to punish is not an answer to this point. Furthermore, the applicant’s submissions that he has not engaged in any conduct which has prolonged the proceedings fails to recognise the fundamental point that he knew from the commencement of the proceedings that the most serious imputations were substantially true.

22    The respondents submitted that “further” they relied on five matters which they said established that the applicant’s conduct was “delinquent and unreasonable”. Those five matters are as follows:

(1)    the findings of collusion between the applicant and Persons 5, 11, 29 and 35 (principal reasons [2363]–[2467]);

(2)    the findings of collusion and false evidence concerning Person 12 being removed or stood down on 31 July 2012 (principal reasons [1509]);

(3)    the findings concerning the concealment of relevant evidence and material (principal reasons [2468]–[2553]);

(4)    the attempts to dissuade Person 40 from giving evidence (principal reasons [2356]–[2359]); and

(5)    the lies relied on by the respondents and described in the principal reasons at [2554]–[2576].

23    The findings I made with respect to those matters are set out in the principal reasons. I incorporate those findings into these reasons and I will not set them out again. As I understand it, the five matters are put forward as matters additional to the contention that the applicant should pay indemnity costs because he knew that a number of the imputations were substantially true. In other words, the five matters are not put forward as an independent basis for an award of indemnity costs. The findings on these matters as set out in the principal reasons add to the conclusion that the applicant should pay indemnity costs, but are not necessary to the conclusion which I have already reached.

The respondents’ Calderbank letter dated 11 June 2019

24    The Calderbank letter from the respondents’ solicitors to the applicant’s solicitors dated 11 June 2019 contained an offer by the respondents to settle the three proceedings on the basis that the applicant would discontinue each proceeding and release the respondents from any liability arising from the series of articles about the applicant and that each party would bear their own costs.

25    This basis for a claim for indemnity costs from 11 June 2019 or thereabouts does not need to be considered in view of my conclusion that the respondents’ first and principal argument succeeds. I consider it only for completeness and on the assumption that the respondents’ claim for indemnity costs from the commencement of the proceedings fails.

26    The relevant factors for a consideration of whether the rejection of a Calderbank offer was unreasonable are well known and were identified by Bromwich J in Triguboff v Fairfax Media Publications Pty Ltd (No 2) [2018] FCA 1513 (at [6]).

27    The respondents’ argument was straightforward. By 11 June 2019, the applicant had 13 outlines of evidence of former and current SASR officers filed by the respondents in support of their defences of substantial truth and contextual truth and his own knowledge of the truth of a number of the key imputations. In those circumstances, the offer made by the respondents was a very favourable one and should have been accepted.

28    The applicant’s response to the respondents’ argument was two-fold. First, he pointed out, in my opinion correctly, that the outlines of evidence were not sworn affidavits or signed witness statements. He pointed out, again in my opinion correctly, that Person 4’s outline of evidence had been filed without Person 4’s knowledge or approval according to evidence Person 4 subsequently gave in the trial. Secondly, the applicant pointed out that as at 11 June 2019, there were no outlines (or sworn affidavits or signed witness statements) from a number of former and current SASR soldiers whose evidence at trial formed the basis for a number of the serious findings I made against him. He referred to the evidence of Persons 24, 40, 41, 42, 43 and 18 in relation to the mission to W108 (an outline in relation to Person 18 had been filed, but it did not deal with the mission to W108) and the evidence of the Afghan witnesses and Person 56 in relation to the mission to Darwan. The applicant also pointed to the fact that a number of documents held by the Department of Defence had not been available to the parties as at 11 June 2019 and finally, the respondents’ version of events at Darwan, including the persons present, was different from the version of events advanced by the respondents at trial.

29    The matters raised by the applicant may be acknowledged as correct. However, they cannot overcome the fact that the applicant had the knowledge of his actions that the findings in the principal reasons indicate that he had. In the circumstances, the offer in the Calderbank letter was a very favourable one and should have been accepted by the applicant. His failure to do so means that he must pay indemnity costs. I should add that as with the respondents’ first and principal argument, the applicant’s knowledge is a very significant consideration. If it is to be excluded from consideration and only the circumstances apart from his knowledge are to be considered, the applicant’s arguments against an award of indemnity costs based on the Calderbank letter are substantial. However, I do not consider that the applicant’s knowledge should be excluded.

The costs of the two Interlocutory applications heard and determined by Abraham J

30    In Roberts-Smith v Fairfax Media Publications Pty Limited (No 32) [2022] FCA 419 (Roberts-Smith (No 32)), the judge described the application dated 25 March 2022 which was the subject of those reasons in the following passage (at [5]):

In summary, the respondents allege that the fraud or deception is the preparation and filing of five outlines of evidence anticipated to be given by the applicant and Persons 27, 32, 35 and 39, and sworn answers to interrogatories by the applicant, to the effect that Person 12 was removed from Rotation 18 around 31 July 2012 and, therefore, could not have been in Darwan on 11 September 2012 or Chenartu on 12 October 2012. Suffice to say the applicant challenges that assertion. I note that there is no suggestion by the respondents that the documents would not otherwise be privileged, but for the fraud allegation (subject to the separate application in respect to Person 27 which is addressed in Roberts-Smith v Fairfax Media Publications Pty Limited (No 33) [2022] FCA 420 (Roberts-Smith (No 33)).

31    The judge said that the issue was whether the respondents had established a prima facie case of fraud and that involved a consideration of the material relied on by the respondents, determining what is admissible evidence, and what, if any, inferences were to be drawn. Her Honour considered the status of an outline of evidence and concluded that the outlines of evidence were not evidence in admissible form in the application, such as to found an application of the nature before her Honour.

32    In Roberts-Smith v Fairfax Media Publications Pty Limited (No 33) [2022] FCA 420 (Roberts-Smith (No 33)), the judge described the application dated 8 April 2022 which was the subject of those reasons in the following passages (at [8] and [16]):

8    In summary, the respondents submit that the documents identified in the objection schedules are not privileged because the applicant has acted inconsistently with the maintenance of the privilege and, as a result, has expressly waived privilege over two communications with Person 27. It is submitted that has given rise to an associated or related waiver over additional communications. In the alternative, the respondents contend that the privilege is displaced because there is a compelling prima facie case that the outline was filed in furtherance of a fraud.

…

16    The respondents’ alternative position of fraud is put on two bases. First, paragraph [30] of Person 27’s outline, which states that he has a recollection that Person 12 was removed from the Rotation 18 deployment on 31 July 2012 after shooting a dog, is one of five outlines of evidence which set out the same erroneous account concerning Person 12. It is wholly implausible that Person 27 and four other individuals held the same erroneous but innocent recollection that Person 12 was removed after shooting a dog. The Court would be comfortably satisfied that paragraph [30] of Person 27’s outline of evidence, in and of itself, establishes a prima facie case that the outline of evidence was prepared and filed in furtherance of a fraud. The second basis depends on whether the applicant took steps to amend the draft outline in response to Person 27’s comment that he did not agree with it. If the applicant filed Person 27’s outline of evidence without amendment and in the knowledge that he did not agree with its contents, the filing of the outline is a fraud or deception within the meaning of Southern Equities Corporation Ltd (in liq) v Arthur Anderson & Co (1997) 70 SASR 166 at 174. The possibility that the applicant filed Person 27’s outline of evidence knowing that Person 27 did not agree with it, it is submitted, is supported by the fact that the outline foreshadows evidence on four topics which Person 27 was objectively unlikely to have said to the applicant, or to have agreed to include in his outline, given the demonstrable falsities in respect to those four topics. Given the falsities, all of which would have assisted the applicant, it is submitted that there is a prima facie case that the applicant caused an outline of evidence to be filed for Person 27 despite knowing that Person 27 did not agree with its contents. Either way, a prima facie case of fraud is said to be established.

The judge rejected the argument relying on waiver (at [32]) and rejected the submission that a prima facie case of fraud had been established (at [34]).

33    As I have said, the respondents’ contention is that the costs of the two applications should be treated as costs in the proceedings with the result (bearing in mind, at least, the effect of the respondents’ offer dated 17 March 2020) that the applicant should pay those costs on an indemnity basis. Alternatively, a special order to that effect should be made in relation to the two applications. The applicant contends that the appropriate costs order in relation to those applications is that each party pay their own costs.

34    The respondents’ submissions in writing were reasonably straightforward. The respondents’ principal point was that the applicant’s opposition to the applications dealt with in Roberts- Smith (No 32) and Roberts-Smith (No 33) was improper. Although the applicant was successful at the time, the findings in the principal reasons subsequently show that there was collusion and false evidence.

35    The respondents pointed to the findings I made in [1509] of the principal reasons as follows:

The applicant and Person 35 colluded to put forward a false story that Person 12 had been removed or stood down following a shooting incident on 31 July 2012. They did that following discussions between themselves with a view to the applicant defeating the respondents’ case with respect to the mission to Chinartu and, at that point in time, the mission to Darwan. An outline of evidence containing the story about Person 12 being removed or stood down on 31 July 2012 was prepared on Person 27’s behalf. It did not reflect his recollection. He tried to verify it, but following his inquiries, the outline was not corrected. Person 32’s evidence about Person 12 being stood down on 31 July 2012 was false. Person 39 had no proper basis for his evidence that Person 12 was stood down or removed on 31 July 2012 and I do not accept his evidence.

36    In their oral submissions, the respondents submitted that in light of the findings made by the Court in the principal reasons, it was clear that the “entire exercise”, being the Notices to produce, Subpoena to produce documents, the subsequent claims of privilege and the Interlocutory applications, should not have occurred. The applicant, on the other hand, submitted that the applications were self-contained applications in respect of which he was successful. An accurate and appropriate adjustment of the usual order that costs follow the event made having regard to the findings in para 1509 of the principal reasons was that each party bear their own costs of the two applications.

37    The respondents submitted that as far as the separate application involving Person 27 was concerned, the case was even stronger because it was clear that the applicant’s lawyers knew that what was contained in the outline of evidence was not accurate. In that respect, they referred me to various passages in the transcript of the trial (at pages 5373, 5385, 5414, 5416, 5423, 5424, 5425 and 5429). In response, the applicant asked me to have regard to all of the evidence and he, in turn, referred me to a passage in the evidence (at page 5431).

38    The respondents seem to be inviting me to make more detailed findings about a matter addressed in the principal reasons. I decline to do that. Knowledge or otherwise of the lawyers does not seem to me to add anything in terms of the present issue.

39    It does not seem to me that there is any general rule or practice in terms of the present issue. It is true that the applicant was successful on the two applications and that there is nothing inherently unreasonable about a losing party in terms of the substantive claim obtaining costs (or resisting costs) in relation to self-contained interlocutory applications in which that party was successful. However, what marks this case out as different is that the applications were linked to a not insubstantial issue at the trial. I found that the applicant and Person 35 had colluded to put forward a false story and I said that my findings have an adverse effect on the credit of the applicant and Persons 35, 27, 32 and 39. In my opinion, the costs of the two applications should be costs in the proceedings which means the applicant will have to pay the respondents’ costs of the two applications on an indemnity basis.

Conclusions

40    In each proceeding there will be an order that the applicant pay the respondents’ costs assessed on an indemnity basis. The costs of the respondents’ Interlocutory application dated 25 March 2022 and the respondents’ Amended Interlocutory application dated 8 April 2022 will be costs in the proceeding.

Associate:    

Dated:    28 November 2023

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