FEDERAL COURT OF AUSTRALIA

Roberts-Smith v Fairfax Media Publications Pty Ltd [2025] FCA 414

ORDERS

THE COURT ORDERS THAT:

1.    In respect of the Notice to Produce dated 16 April 2025 and issued to the Second Respondent by the Appellant,

(a)    paragraphs 2 to 3 and 5 to 10 be set aside;

(b)    paragraph 1 be taken to have a date range of 1 August 2020 to 30 April 2021; and

(c)    paragraph 4 be taken to have a date range of 1 August 2020 to 31 May 2021.

2.    In respect of the Subpoena to Produce Documents filed on 17 April 2025 and issued to Mr Dean Levitan at the request of the Appellant, paragraphs 1 to 3 and 5 to 8 be set aside and paragraph 4 be taken to be limited to the date range of 1 August 2020 to 31 May 2021.

3.    In respect of the Subpoena to Produce Documents filed on 17 April 2025 and issued to Mr Peter Bartlett at the request of the Appellant, paragraphs 1 to 3 and 5 to 8 be set aside and paragraph 4 be taken to be limited to the date range of 1 August 2020 to 31 May 2021.

4.    The Subpoena to Produce Documents filed on 17 April 2025 and issued to the Australian Broadcasting Commission at the request of the Appellant be set aside.

5.    The Subpoena to Produce Documents filed on 17 April 2025 and issued to Person 17 at the request of the Appellant be set aside.

6.    The Subpoena to Produce Documents filed on 17 April 2025 and issued to Emma Roberts at the request of the Appellant be set aside.

7.    The Subpoena to Produce Documents filed on 17 April 2025 and issued to Danielle Scott at the request of the Appellant be set aside.

8.    The time for compliance with the paragraphs of the subpoenas and the notice to produce referred to in Orders 1, 2 and 3 that have not been set aside be amended to 5 pm on Monday 28 April 2025 with liberty to apply.

9.    The costs of the Respondents’ Interlocutory Application lodged on 22 April 2025 be costs in the cause.

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

ORDERS

THE COURT ORDERS THAT:

1.    In respect of the Notice to Produce dated 16 April 2025 and issued to the Second Respondent by the Appellant,

(a)    paragraphs 2 to 3 and 5 to 10 be set aside;

(b)    paragraph 1 be taken to have a date range of 1 August 2020 to 30 April 2021; and

(c)    paragraph 4 be taken to have a date range of 1 August 2020 to 31 May 2021.

2.    In respect of the Subpoena to Produce Documents filed on 17 April 2025 and issued to Mr Dean Levitan at the request of the Appellant, paragraphs 1 to 3 and 5 to 8 be set aside and paragraph 4 be taken to be limited to the date range of 1 August 2020 to 31 May 2021.

3.    In respect of the Subpoena to Produce Documents filed on 17 April 2025 and issued to Mr Peter Bartlett at the request of the Appellant, paragraphs 1 to 3 and 5 to 8 be set aside and paragraph 4 be taken to be limited to the date range of 1 August 2020 to 31 May 2021.

4.    The Subpoena to Produce Documents filed on 17 April 2025 and issued to the Australian Broadcasting Commission at the request of the Appellant be set aside.

5.    The Subpoena to Produce Documents filed on 17 April 2025 and issued to Person 17 at the request of the Appellant be set aside.

6.    The Subpoena to Produce Documents filed on 17 April 2025 and issued to Emma Roberts at the request of the Appellant be set aside.

7.    The Subpoena to Produce Documents filed on 17 April 2025 and issued to Danielle Scott at the request of the Appellant be set aside.

8.    The time for compliance with the paragraphs of the subpoenas and the notice to produce referred to in Orders 1, 2 and 3 that have not been set aside be amended to 5 pm on Monday 28 April 2025 with liberty to apply.

9.    The costs of the Respondents’ Interlocutory Application lodged on 22 April 2025 be costs in the cause.

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

ORDERS

THE COURT ORDERS THAT:

1.    In respect of the Notice to Produce dated 16 April 2025 and issued to the Second Respondent by the Appellant,

(a)    paragraphs 2 to 3 and 5 to 10 be set aside;

(b)    paragraph 1 be taken to have a date range of 1 August 2020 to 30 April 2021; and

(c)    paragraph 4 be taken to have a date range of 1 August 2020 to 31 May 2021.

2.    In respect of the Subpoena to Produce Documents filed on 17 April 2025 and issued to Mr Dean Levitan at the request of the Appellant, paragraphs 1 to 3 and 5 to 8 be set aside and paragraph 4 be taken to be limited to the date range of 1 August 2020 to 31 May 2021.

3.    In respect of the Subpoena to Produce Documents filed on 17 April 2025 and issued to Mr Peter Bartlett at the request of the Appellant, paragraphs 1 to 3 and 5 to 8 be set aside and paragraph 4 be taken to be limited to the date range of 1 August 2020 to 31 May 2021.

4.    The Subpoena to Produce Documents filed on 17 April 2025 and issued to the Australian Broadcasting Commission at the request of the Appellant be set aside.

5.    The Subpoena to Produce Documents filed on 17 April 2025 and issued to Person 17 at the request of the Appellant be set aside.

6.    The Subpoena to Produce Documents filed on 17 April 2025 and issued to Emma Roberts at the request of the Appellant be set aside.

7.    The Subpoena to Produce Documents filed on 17 April 2025 and issued to Danielle Scott at the request of the Appellant be set aside.

8.    The time for compliance with the paragraphs of the subpoenas and the notice to produce referred to in Orders 1, 2 and 3 that have not been set aside be amended to 5 pm on Monday 28 April 2025 with liberty to apply.

9.    The costs of the Respondents’ Interlocutory Application lodged on 22 April 2025 be costs in the cause.

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

REASONS FOR JUDGMENT

PERRAM J:

INTRODUCTION

1    The appellant has filed an interlocutory application to re-open his appeal, lead fresh evidence in the appeal and amend his notice of appeal. Principally, the fresh evidence consists of a recording of the second respondent, Mr Nick McKenzie, in which he says to a witness known by reason of orders of this Court only as Person 17, that ‘they’ve actively like briefing us on his legal strategy in respect of you’. The ‘they’ is a reference to Ms Emma Roberts and Ms Danielle Scott. Ms Emma Roberts is the appellant’s former wife and Ms Scott is the best friend of Ms Roberts.

2    The appellant contends that Ms Roberts had access to one of the appellant’s email accounts and his suggestion will be that Ms Roberts and/or Ms Scott were passing the appellant’s privileged communications to Mr McKenzie who was then utilising them against the appellant in the conduct of the respondents’ defence of the appellant’s defamation proceedings.

3    The appellant filed an outline of evidence for Ms Roberts but subsequently an outline of her evidence was filed by the respondents who then called her as a witness at the trial. The respondents also filed an outline of evidence for Ms Scott on the appellant but she was not called as a witness.

4    The recording includes Mr McKenzie saying to Person 17 in the same call ‘I shouldn’t - I shouldn’t tell you. I’ve just breached my fucking ethics in doing that like this is where like, this has put me in a shit position now like. If Dean knew that and then you know I’d get my arse fucking handed to me on a platter like’. The reference to ‘Dean’ is a reference to Mr Dean Levitan, one of the respondents’ solicitors.

5    The proposed new ground of appeal (Ground 17) alleges that there has been a miscarriage of justice and a denial of a fair trial ‘by reason of the Second Respondent’s misconduct’.

6    Proposed Ground 17 is accompanied by a proposed Particular 35:

The Second Respondent, Mr McKenzie, engaged in wilful misconduct in the proceedings below by improperly and unlawfully obtaining and retaining information concerning the Appellant’s legal strategy concerning the trial that was confidential and privileged to the Appellant.

7    There are a number of other allegations in Particulars 36-38 which are directed to demonstrating that Mr McKenzie’s alleged misconduct impacted on the outcome of the trial. These are not presently material. What is material is that the structure of the appellant’s proposed new ground of appeal has these constituent elements:

(a)    An allegation that Mr McKenzie wilfully obtained and retained information concerning the appellant’s legal strategy and in doing so acted improperly and unlawfully; and

(b)    The information was confidential and privileged.

8    During the course of argument on the present application, I pressed Senior Counsel for the appellant on whether the allegation that the information was privileged was an essential part of the appellant’s proposed fresh ground but did not receive a clear response. Nevertheless, it is clear that the appellant is going to seek to prove that the communications in question were privileged.

9    The appellant’s application is to be heard by the Full Court on 1 and 2 May 2025. At that time the issues will be:

(a)    whether the identified information was privileged to the appellant;

(b)    if so, whether Mr McKenzie was aware of this;

(c)    if so, whether Mr McKenzie acted unlawfully or improperly in obtaining and retaining the information; and,

(d)    if so, whether this resulted in an unfair trial for the appellant.

10    In advance of next week’s hearing, the appellant sought the issue of several subpoenas for the production of documents to third parties and a notice to produce to Mr McKenzie himself. The respondents now seek to set the subpoenas and the notice to produce aside. They do so on two bases: (a) that they do not serve a legitimate forensic purpose and (b) that they are oppressive.

11    The subpoenas and the notice to produce will not serve a legitimate forensic purpose if they seek the production of documents which do not have ‘apparent relevance’ to the issues in the case. A document will have ‘apparent relevance’ if it ‘could reasonably be expected to throw light on some of the issues in the proceedings’: Seven Network (Operations) Ltd v Fairfax Media Publications Pty Ltd [2023] FCAFC 185 at [35], [37] and [39] per Wheelahan, Anderson and Jackman JJ. On the other hand, the machinery of subpoenas is not to be utilised to find out facts, matters or circumstances which might enable a party to advance a case of which it has no present knowledge: Commissioner for Railways v Small (1938) 38 SR (NSW) 564; 55 WN (NSW) 215 at 575. This is sometimes expressed as a prohibition of fishing expeditions.

12    These principles require the identification of the issues in the relevant proceeding. I have outlined the four issues above.

13    As a result of timetabling orders made in respect of the appellant’s application to re-open, the respondents filed an affidavit of Mr McKenzie which sets out his evidence about the recording. Whilst there are some minor disagreements about the precise wording of the various transcripts of the recording, it does not seem to be in dispute that Mr McKenzie did say words to the effect of those attributed to him. In addition to the recording deposed to by Ms Allen, Mr McKenzie’s affidavit also exhibited to it a number of documents including two emails sent by him to the respondents’ solicitors dated 12 March 2021 and 22 March 2021.

14    During the course of the hearing of the present application, Senior Counsel for the appellant identified the communications to which he said Mr McKenzie had obtained access and which he submitted were privileged (i.e. the issue in (a)). These were as follows:

(a)    the appellant’s legal strategy referred to by Mr McKenzie in a recorded telephone conversation with Person 17;

(b)    two passages in an email from Mr McKenzie to his solicitors dated 12 March 2021:

(i)    The first passage suggests Mr McKenzie obtained information from the appellant’s now former wife, Ms Roberts, that on 4 December 2019, the appellant had met with his solicitor, Ms Allen, and a soldier known as Person 29. Person 29 served in Afghanistan with the appellant and features extensively in the trial judge’s reasons. Mr McKenzie appears to have believed, based on what Ms Roberts had told him, that the purpose of the meeting between the appellant, Ms Allen and Person 29 was to permit the appellant to provide Person 29 with documents for him to use at his upcoming interview with the military inquiry into the events in Afghanistan.

(ii)    The second passage suggests the appellant’s solicitor, Ms Allen, had written to Ms Roberts about obtaining evidence from her concerning when it was that she and the appellant had separated and discussing how a subpoena to Ms Roberts on that topic might be handled. The relevance of this information related to whether the appellant was still living with his wife when he and Person 17 commenced their extramarital affair. The appellant initially hoped to elicit evidence from Ms Roberts that they had separated at the time that the appellant was conducting the affair with Person 17. She initially agreed to testify that this was so but subsequently changed her evidence so that she now said that they had not separated at the time of the affair and that the appellant had asked her to give false evidence about this.

(c)    A passage in an email from Mr McKenzie to his solicitors dated 22 March 2021 which suggests that he had been told by Ms Roberts’ friend, Ms Scott, that the appellant’s then solicitor, Mr Mark O’Brien, had sent the appellant an email on 31 July 2019 about an issue concerning Mr Mick Keelty, a former commissioner of the Australian Federal Police, to the effect that the authorities wished to speak to him about misconduct involving a senior officer of the Australian Federal Police.

15    At the ex parte request of the appellant the Court issued subpoenas for the production of documents to the following third parties:

(a)    Mr Peter Bartlett, the solicitor for the respondents;

(b)    Mr Dean Levitan, a solicitor for the respondent working under Mr Bartlett;

(c)    Ms Emma Roberts, the former wife of the appellant;

(d)    Ms Danielle Scott, the best friend of Ms Roberts;

(e)    Person 17, a person who had an affair with the appellant. There are pre-existing orders in the case of Person 17 which prevent her identity being publicly revealed; and

(f)    The Australian Broadcasting Corporation, a statutory corporation which broadcasts and makes available on-line a program known as Media Watch which is hosted by Mr Linton Besser.

16    At the same time as the subpoenas were issued, the appellant also issued a notice to produce to Mr McKenzie. Each was made returnable before me on 23 April 2025. At the return of the subpoenas and the notice to produce before me on 23 April 2025 the respondents sought to set each aside on the basis that they did not serve a legitimate forensic purpose and would be oppressive to comply with in time for next week’s hearing in the Full Court.

The Notice to Produce to Mr McKenzie

17    It is convenient to begin with the notice to produce issued to Mr McKenzie. Paragraph 1 seeks these matters:

All letters, emails, text messages, WhatsApp or Signal messages, notes of conversations or other documents by which you received information from Emma Roberts or Danielle Scott in relation to the Appellant in the period between 1 August 2020 and 27 July 2022.

18    The respondents object that the date range for this paragraph is too broad but otherwise do not object. The appellant will seek next week to rely upon an affidavit sworn by him on 10 June 2021 (which is annexed to Ms Allen’s first affidavit). In that affidavit the appellant gives evidence that he had a concern that Ms Roberts was accessing one of his email accounts prior to 20 April 2021. He logged into his account again on 30 May 2021 and found that emails prior to 24 May 2021 had been deleted. If this is correct then the respondents submit that the events giving rise to his concern had occurred before the end of May 2021. They therefore submit that there can be no basis for thinking that Mr McKenzie through Ms Roberts was obtaining access to his privileged communications after that date. The respondents did not articulate this but I infer that their point is that after the appellant discovered his email was compromised in this fashion he would have taken steps to prevent Ms Roberts from accessing the email account (or prevented any legal advice being sent to that email address). I accept this. In assessing what is likely to be obtained by the appellant if paragraph 1 stands, I do not accept that documents created after 31 May 2021 could reasonably be expected to throw light on the four issues I have identified. In reaching that conclusion, I therefore reject the appellant’s submission that Mr McKenzie may have received the information after 31 May 2021 because Ms Roberts and Ms Scott may have stored up the information before giving it to him. This is speculative.

19    At the hearing the appellant accepted that paragraph 1 should be limited to the date range 1 August 2020 to 30 April 2021. I will allow paragraph 1 save that I will change the date range to 1 August 2020 to 30 April 2021.

20    Paragraph 2 is in these terms:

All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and any employee or partner of Minter Ellison in relation to information obtained from or said to be derived from Danielle Scott or Emma Roberts in the period between 1 August 2020 and 27 July 2022.

21    I do not see that the documents produced under this paragraph throw any light on the first issue (namely whether the four communications now identified were privileged) or the fourth issue (whether the trial was unfair). Their relevance can only be to the second issue (whether Mr McKenzie knew the four communications were privileged) and the third issue (whether, knowing that, he unlawfully obtained and retained the communications). As framed the paragraph catches much more than the second and third issue require. For example, the paragraph would require production of an email between Mr McKenzie and MinterEllison in which he conveyed that Ms Roberts was now willing to give evidence for the respondents. The paragraph will be set aside. If proposed Ground 17 and proposed Particular 35 alleged that Minter Ellison had improperly used the privileged material, the answer may well have been different. However, the processes of this Court are not to be used to engage in a fishing expedition for a case which the appellant does not put.

22    Paragraph 3 is in these terms:

All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you, or any person acting on your behalf, and any of the following persons in relation to the Appellant:

a.    Emma Roberts;

b.    Danielle Scott;

c.    Person 17,

the period between 1 August 2020 and 27 July 2022.

23    Again, this is far too broad. Every communication Mr McKenzie had with Ms Roberts, Ms Scott or Person 17, given the context of the proceedings, will arguably have the quality of being ‘in relation to the appellant’. The paragraph is overly broad and will be set aside.

24    Paragraph 4 is in these terms:

All documents, images, recordings, notes, emails, letters, text messages, WhatsApp or Signal messages, or other communications comprising or evidencing any information, documents, or images provided to you by Danielle Scott, or any person acting on her behalf, which you subsequently provided or forwarded to MinterEllison, or any employee or partner of that firm, as referred to in paragraph 43 of your affidavit affirmed on 14 April 2025.

25    The respondents do not object that this paragraph seeks irrelevant material but they do submit that the date range is too broad for the reasons they gave in relation to paragraph 1. As I have indicated, I accept that submission. The paragraph will not be set aside but the date range will be limited to 1 August 2020 to 31 May 2021.

26    Paragraph 5 is in these terms:

All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you, or any person acting on your behalf, and Person 17, or any person acting on her behalf, in relation to the audio recording of a conversation between you and Person 17 recorded in or about March or April 2021 (Audio Recording) from 21 March 2025 to date.

27    On the present application the appellant did not press paragraph 5 which will therefore be set aside.

28    Paragraph 6 is in these terms:

All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you, or any person acting on your behalf, and Lynton Besser, or any other producer or researcher for the ABC’s program Media Watch, in relation to Person 17 or the Audio Recording from 21 March 2025 to date.

29    I do not see how communications between Mr McKenzie and Media Watch in 2025 about the recording or Person 17 could reasonably be expected to throw light on the four issues I have identified which are all concerned with events which occurred before 31 May 2021. The only relevance would be if Mr McKenzie had made admissions to Media Watch about the subject matter of the four issues. However, I do not think that it is an appropriate use of a subpoena to trawl through Mr McKenzie’s communications to see if admissions can be found. Such an exercise is a fishing expedition for which a subpoena is not the appropriate procedural tool. The paragraph will be set aside.

30    Paragraphs 7 and 8 are in these terms:

7.    All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and Dean Levitan in relation to these proceedings from 21 March 2025 to date.

8.    All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and Peter Bartlett in relation to these proceedings from 21 March 2025 to date.

31    For the same reasons I have given in relation to paragraph 6, I do not see how documents created after 21 March 2025 could reasonably be expected to throw light on the four issues I have identified. Further, it is obvious that most of these communications are likely to be privileged.

32    For completeness, I should mention that during the hearing, Senior Counsel for the appellant submitted that Mr McKenzie had ‘thrown [his solicitors] under a bus’. The submission had the following elements:

(1)    It was obvious to Mr McKenzie that the four communications identified above were legally privileged.

(2)    He sent the communications to Mr Levitan and Mr Bartlett.

(3)    It would have been obvious to them that they were privileged.

(4)    In his affidavit Mr McKenzie had said that Mr Levitan and Mr Bartlett had not indicated to him that they were privileged.

33    I take the submission as being intended to convey that Mr Levitan and Mr Bartlett had engaged in misconduct by not telling Mr McKenzie that the communications were privileged and by subsequently utilising the communications in the conduct of the litigation. On that assumption, the submission does not correspond with the case the appellant seeks to advance on his reopening application. Ground 17 and Particular 35 are clear that the only person they allege has been involved in misconduct is Mr McKenzie.

34    Thus, Senior Counsel’s submission is unmoored to any issue which the appellant’s re-opening application seeks to ventilate. The respondents in their submissions pointed out the confined nature of Ground 17 and Particular 35 but the appellant did not apply for leave to amend Particular 35 to include the allegations against Mr Levitan and Mr Bartlett. In the absence of such an application, it is not appropriate for me to speculate on its likely outcome or whether the material before the Court discloses a reasonable basis for the serious allegations made at the hearing against Mr Levitan and Mr Bartlett in open court.

35    Paragraphs 7 and 8 will be set aside.

36    Paragraphs 9 and 10 are in these terms:

9.    All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and Emma Roberts, or any person acting on her behalf, in relation to these proceedings from 21 March 2025 to date.

10.    All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and Danielle Scott, or any person acting on her behalf, in relation to these proceedings from 21 March 2025 to date.

37    For the same reasons I have articulated in setting aside paragraphs 6, 7 and 8, I do not see how documents produced after 21 March 2025 could reasonably be expected to throw light on the four issues I have identified. The paragraphs will be set aside.

Conclusions on the Notice to Produce to Mr McKenzie

38    Paragraphs 2 to 3 and 5 to 10 of the notice to produce will be set aside. Paragraph 1 will be taken to operate as if the date range expressed in it was 1 August 2020 to 30 April 2021 and paragraph 4 will be taken to operate as if the date range were 1 August 2020 to 31 May 2021.

The Subpoena to Mr Dean Levitan of MinterEllison

39    Paragraph 1 of the subpoena is in these terms:

All letters, emails, text messages, WhatsApp or Signal messages, notes of conversations or other documents by which Nick McKenzie provided you information in relation to the Appellant obtained from Emma Roberts or Danielle Scott in the period between 1 August 2020 and 27 July 2022.

40    This paragraph has two defects. First, many of the communications passing between Mr McKenzie and Mr Levitan can be expected to be the subject of claims for legal professional privilege. Secondly, the paragraph on its face would require production of documents which have no relevance to the four issues I have identified because it is delimited only by the fact that it needs to be ‘in relation to the appellant’. The paragraph will be set aside.

41    Paragraph 2 of the subpoena is in these terms:

All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and Nick McKenzie in relation to information obtained from Danielle Scott or Emma Roberts in the period between 1 August 2020 and 27 July 2022.

42    This appears to be substantively the same as paragraph 1. It will be set aside for the same reasons.

43    Paragraph 3 of the subpoena is in these terms:

All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and any of the following persons in relation to the Appellant:

a.    Emma Roberts;

b.    Danielle Scott;

c.    Person 17,

the period between 1 August 2020 and 27 July 2022.

44    This is overly broad. It catches any document concerning discussions between Mr Levitan and Ms Roberts which relate to the appellant. Since Ms Roberts provided the respondents with an outline of evidence it is apparent that this paragraph will result in a large amount of material which has nothing to do with the present issues. The same may be said of Ms Scott. In the case of Person 17, there is no basis in the evidence before me to think that Person 17 has been involved in the receipt or distribution of privileged material.

45    The paragraph will be set aside.

46    Paragraph 4 of the subpoena is in these terms:

All notes of any meeting attended by Emma Roberts or Danielle Scott, on the one hand, and Nick McKenzie and any employee or partner of Minter Ellison, as well as any counsel briefed on the matter, on the other hand in the period between 1 August 2020 and 27 July 2022, including but not limited to the meeting on 14 March 2021.

47    The respondents do not object to the paragraph on the grounds of relevance. They do object that the date range is too broad which for the reasons I have already given I accept. The paragraph will be taken to operate as if the date range were 1 August 2020 to 31 May 2021.

48    Paragraph 5 of the subpoena is in these terms:

All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and Person 17, or any person acting on her behalf, in relation to the audio recording of a conversation between Nick McKenzie and Person 17 in the period in the period between 1 August 2020 and 27 July 2022.

49    This paragraph is not pressed by the appellant and will be set aside.

50    Paragraphs 6-8 are in these terms:

6.    All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and Nick McKenzie in relation to these proceedings from 21 March 2025 to date.

7.    All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and Emma Roberts, or any person acting on her behalf, in relation to these proceedings from 21 March 2025 to date.

8.    All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and Danielle Scott, or any person acting on her behalf, in relation to these proceedings from 21 March 2025 to date.

51    For the reasons I have given, I do not accept that documents created this year could reasonably be expected to throw light on the four issues I have identified. These paragraphs will be set aside.

Conclusions on the subpoena to Mr Dean Levitan

52    Paragraphs 1 to 3 and 5 to 8 will be set aside. Paragraph 4 will be taken to have a date range of 1 August 2020 to 31 May 2021.

The Subpoena to Mr Peter Bartlett of MinterEllison

53    This subpoena is in the same terms as the subpoena to Mr Dean Levitan and will be dealt with in the same way.

The Subpoena to the Australian Broadcast Corporation

54    For the reasons I have given in relation to paragraph 6 of the notice to produce to Mr McKenzie this subpoena will be set aside.

The Subpoena to Person 17

55    Paragraphs 1 to 3 are in these terms:

1.    All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you, or any person acting on your behalf, and Nick McKenzie, or any person acting on his behalf, in relation to the Appellant in the period between 1 August 2020 and 27 July 2022.

2.    All letters, emails, text messages, WhatsApp or Signal messages, notes of conversations or other documents exchanged between you, or any person acting on your behalf, and Nick McKenzie, or any person acting on his behalf from 21 March 2025 to date in relation to an audio recording of a conversation between you and Nick McKenzie.

3.    All letters, emails, text messages, WhatsApp or Signal messages, notes of conversations or other documents exchanged between you, or any person acting on your behalf, and Linton Besser, or any other employee of the Australian Broadcasting Corporation from 21 March 2025 to date concerning an audio recording of a conversation between you and Nick McKenzie.

56    The four issues raised on the re-opening application do not concern communications involving Person 17. The re-opening application is concerned with communications between Mr McKenzie, on the one hand, and Ms Roberts and Ms Scott, on the other, which resulted in further communication between Mr McKenzie and MinterEllison. The subpoena will be set aside.

The Subpoena to Ms Emma Roberts

57    Paragraphs 1 to 4 of the subpoena are in these terms:

1.    All letters, emails, text messages, WhatsApp or Signal messages, notes of conversations or other documents by which you provided any information to Nick McKenzie in relation to the Appellant in the period between 1 August 2020 and 27 July 2022.

2.    All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and Danielle Scott in relation to the Appellant in the period between 1 August 2020 and 27 July 2022.

3.    All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and Nick McKenzie, or any person acting on his behalf, in relation to the Appellant in the period between 1 August 2020 and 27 July 2022.

4.    All letters, emails, text messages, WhatsApp or Signal messages or notes of conversations between you and Nick McKenzie, or any person acting on his behalf, in relation to these proceedings from 21 March 2025 to date.

58    Paragraphs 1 to 3 catch any communications which merely relate to the appellant. For the reasons I have already given in relation to the notice to produce to Mr McKenzie, these paragraphs are far too broad and must be set aside. As I have also explained, I will not permit the subpoena machinery to be used to obtain documents generated in 2025 so paragraph 4 will be set aside.

59    This subpoena will be set aside.

The Subpoena to Ms Danielle Scott

60    This subpoena is relevantly in the same terms as the subpoena to Ms Roberts and will be set aside for the same reasons.

CONCLUSIONS

61    On 24 April 2025 I made orders giving effect to these conclusions in the following terms:

(1)    In respect of the Notice to Produce dated 16 April 2025 and issued to the Second Respondent by the Appellant,

(a)    paragraphs 2 to 3 and 5 to 10 be set aside;

(b)    paragraph 1 be taken to have a date range of 1 August 2020 to 30 April 2021; and

(c)    paragraph 4 be taken to have a date range of 1 August 2020 to 31 May 2021.

(2)    In respect of the Subpoena to Produce Documents filed on 17 April 2025 and issued to Mr Dean Levitan at the request of the Appellant, paragraphs 1 to 3 and 5 to 8 be set aside and paragraph 4 be taken to be limited to the date range of 1 August 2020 to 31 May 2021.

(3)    In respect of the Subpoena to Produce Documents filed on 17 April 2025 and issued to Mr Peter Bartlett at the request of the Appellant, paragraphs 1 to 3 and 5 to 8 be set aside and paragraph 4 be taken to be limited to the date range of 1 August 2020 to 31 May 2021.

(4)    The Subpoena to Produce Documents filed on 17 April 2025 and issued to the Australian Broadcasting Commission at the request of the Appellant be set aside.

(5)    The Subpoena to Produce Documents filed on 17 April 2025 and issued to Person 17 at the request of the Appellant be set aside.

(6)    The Subpoena to Produce Documents filed on 17 April 2025 and issued to Emma Roberts at the request of the Appellant be set aside.

(7)    The Subpoena to Produce Documents filed on 17 April 2025 and issued to Danielle Scott at the request of the Appellant be set aside.

(8)    The time for compliance with the paragraphs of the subpoenas and the notice to produce referred to in Orders 1, 2 and 3 that have not been set aside be amended to 5 pm on Monday 28 April 2025 with liberty to apply.

(9)    The costs of the Respondents’ Interlocutory Application lodged on 22 April 2025 be costs in the cause.

Associate:

Dated:    28 April 2025