Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Ltd (Privilege judgment) [2025] FCA 499

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s interlocutory application dated 30 April 2025 for access to be granted to the file note dated 14 March 2021 is dismissed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The appellant’s interlocutory application for production concerned a document produced in response to a Notice to Produce and subpoenas, being a handwritten and contemporaneous file note prepared by the respondents’ solicitor, Mr Dean Levitan, relating to a meeting held on 14 March 2021 at the home of Ms Emma Roberts (the appellant’s former spouse) (the File Note). The meeting was attended by Ms Roberts, her friend Ms Danielle Scott and another friend named Ms Melissa Groves, Mr Levitan and fellow solicitor for the respondents Mr Peter Bartlett, and Mr Nick McKenzie.

2    The respondents claim that the File Note is subject to legal professional privilege, which the appellant concedes. However, the appellant contends that there has been an issue waiver of that privilege. The respondents challenge that submission. On 30 April 2025 I made orders dismissing the application. These are my reasons for doing so.

Background

3    The factual context in which the application arises is described by Perram J in Roberts-Smith v Fairfax Media Publications Pty Ltd [2025] FCA 414 (Roberts-Smith). That is, the appellant has filed an interlocutory application to re-open his appeal, lead fresh evidence in the appeal and amend his notice of appeal. His Honour describes that principally the fresh evidence consists of a recording of the second respondent, Mr 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 Roberts and Ms Scott: Roberts-Smith at [1]. The audio 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 to Mr Levitan, one of the respondents’ solicitors: Roberts-Smith at [4].

4    The appellant’s proposed Amended Notice of Appeal claims in a new ground of appeal (Ground 17) that there has been a miscarriage of justice and denial of fair trial due to the alleged misconduct by Mr McKenzie and seeks a retrial. The allegation is that 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” (Particular 35 accompanying proposed Ground 17). As Perram J in Roberts-Smith at [2] summarises the allegation:

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.

5    On 14 April 2025, the respondents served evidence in response to the application, including an affidavit of Mr McKenzie affirmed on 14 April 2025 (with several exhibits) (McKenzie Affidavit).

6    Mr McKenzie denies the allegation of misconduct. The respondents described that in the McKenzie Affidavit he explains what he believes he meant in the audio recording and deposes to his dealings with Ms Scott and Ms Roberts. The File Note was made at a meeting held at the house of Ms Roberts on 14 March 2021. At that time, Ms Roberts was a potential witness for the respondents (and was ultimately called to give evidence at the trial). In their submissions at paragraphs [8]-[10], the respondents recited the following paragraphs of the McKenzie Affidavit which address his dealings with Ms Roberts:

59.    In the case of Emma, I sent Emma a text message in late 2020 seeking to initiate communications with her but she had never responded to that message.

60.    My first interaction with Emma was when I met with her at her house at Indooroopilly in Queensland on 14 March 2021. Dean and Peter were also present, together with Danielle and another of Emma’s friends. I did not keep a note of this meeting. I do not recall Emma then, or at any other time, sharing any communications or documents exchanged between Roberts-Smith and his lawyers. Nor do I recall her saying anything to me that suggested she was sharing information she had obtained from looking at communications or documents exchanged between Roberts-Smith and his lawyers.

61.    After the meeting at Indooroopilly on 14 March 2021, I cannot remember meeting Emma again, other than one occasion when I met her in Sydney and Emma, Danielle, Dean Levitan and I had dinner. That dinner was not for the purpose of Emma or Danielle sharing any information or material relevant to the case and I do not recall them doing so. Emma and I corresponded occasionally by text on Signal in the lead up to trial, and during the trial, but Emma never shared with me information or documents that I believed came from Roberts-Smith’s communications with his lawyers.

7    On 15 April 2025, the respondents’ solicitors wrote to the appellant’s solicitors indicating that, in preparing for the current application, the respondents had identified a document responsive to the Notice to Produce for inspection dated 15 February 2022 and served by the appellant at trial (the 2022 NTP), being the File Note. The 2022 NTP had been called on in Court on 16 February 2022, but no documents were produced in response at that time.

8    On 17 April 2025, the appellant served a Notice to Produce to Court on the respondents and, with the leave of the Full Court, subpoenas to produce documents on Messrs McKenzie and Bartlett. On 24 April 2025, Perram J made orders which, in effect, substantially narrowed the categories of documents sought by the Notice to Produce and the subpoenas: Roberts-Smith.

9    On 28 and 29 April 2025, the respondents produced documents pursuant to the Notice to Produce and the subpoenas. Part of the production was accompanied by a Privilege Schedule which claimed legal professional privilege over the File Note.

10    This application relates to the File Note, with the appellant claiming that the respondents had impliedly waived privilege in it. On 29 April 2025, Perram J made orders that were by consent, involving the exchange of written submissions on the application, and that the application be determined on the papers by a Justice of the Court other than a member of the Full Court. The appellant’s application to re-open the appeal was listed to be heard by the Full Court on 1 and 2 May 2025. In that context, I decided this application and pronounced the orders on 30 April 2025.

Material before the Court

11    The parties provided a court book which contained, inter alia, the relevant McKenzie Affidavit.

Legal principles

12    There was no dispute between the parties that the document sought is privileged, the issue is one of waiver.

13    The principles relevant to a claim for legal professional privilege were summarised in Roberts-Smith v Fairfax Media Publications Pty Limited (No 23) [2021] FCA 1460 (Roberts-Smith (No 23)) at [37]-[46], and expanded upon with respect to waiver of privilege in Roberts-Smith v Fairfax Media Publications Pty Limited (No 25) [2021] FCA 1558 (Roberts-Smith (No 25)) at [18]-[26]. As with the applications there considered, this application is governed by the common law: Roberts-Smith (No 23) at [37]; Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [16]-[17].

14    Given the issue for determination, for the convenience of the reader, I repeat my discussion of the principles of waiver of privilege from Roberts-Smith (No 25) at [20]-[24] and [26]:

[20]    In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 (Mann), the plurality explained the rationale and approach at [28]-[29] as follows (citations omitted):

At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege…

Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege… What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

[21]    When considering whether a waiver of privilege has occurred, each case must be assessed on its own facts: Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 (Rio Tinto) at [45], [61]. As explained at [45]:

Where, as here, one party alleges that another has impliedly waived legal professional privilege, a court is bound to analyse the acts or omissions of the privilege holder that are said to be inconsistent with the maintenance of the privilege. In concluding that the Commissioner had waived the privilege in the eight contested documents, the docket judge in fact applied the “inconsistency” principle of Mann, as he was obliged to do: see Rio Tinto (2) at [20]. Plainly enough, the inquiry that it mandates focuses on the facts of the particular case. It follows that other cases in which implied waiver has been considered provide limited guidance unless they arise out of similar facts.

[22]    In DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499 (DSE), Allsop J (as his Honour then was) observed at [58] (emphasis in the original):

…the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication.

[23]    And see Rio Tinto at [61]:

Both before and after Mann, the governing principle required a fact-based inquiry as to whether, in effect, the privilege holder had directly or indirectly put the contents of an otherwise privileged communication in issue in litigation, either in making a claim or by way of defence…

[24]    Inconsistency may arise if the privilege holder makes assertions about its state of mind and there are likely to have been confidential communications which affected that state of mind: Council of the New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236 at [48]. The question, however, is not whether a party has put their state of mind in issue but whether or not the privilege holder made an assertion as part of their case that lays open the privileged documents to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of privilege: Rio Tinto at [65].

…

[26]    All that said, questions of waiver are matters of fact and degree: Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 at [49]. The applicant bears the onus in establishing waiver: New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 180 FCR 543 at [54].

15    In addition to the above, it is also appropriate to refer to DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499 (DSE) at [115] (a passage relied on by the respondents in their submissions) where Allsop J (as his Honour then was) observed:

The act of mere denial by the respondents of an assertion by the applicants is not an act by the respondents which expressly or impliedly makes an assertion about the contents of any privileged communication or which necessarily lays any such communication open to scrutiny. There is no act of the respondents inconsistent with the maintenance of the confidentiality. There is a joinder of issue on a question of fact to which the privileged communication can be seen as relevant. That is insufficient in my view for it to be concluded that there exists the necessary inconsistency enunciated by Mann v Carnell.

Submissions

Appellant’s submission

16    The appellant submitted that the contended issue waiver of the privilege subject to the File Note arises from the content of the McKenzie Affidavit. The relevant content pertinent to the File Note is summarised in his submissions as follows:

(a)    …

(h)    He attended a meeting on 14 March 2021 at the home of Ms Emma Roberts, which was also attended by Mr Peter Bartlett, Mr Dean Levitan, Ms Danielle Scott, and a friend of Ms Roberts: [60].

(i)    He did not keep a file note of the 14 March 2021 meeting: [60].

(j)    He did not recall Ms Roberts sharing any communications or documents exchanged between the Appellant and his lawyers at the 14 March 2021 meeting, nor did he recall anything to suggest to him that she was sharing information she had obtained from looking at communications or documents exchanged between the Appellant and his lawyers [60]-[61].

17    The appellant submitted the respondents placed in issue the contents of the meeting held on 14 March 2021 at the home of Ms Roberts. He said, as to that meeting, Mr McKenzie had deposed to attending the meeting and that

at that meeting, neither Ms Roberts nor Ms Scott disclosed any communications or documents exchanged between the Appellant and his lawyers, and that he did not receive or understand anything said to constitute privileged material.

18    He submitted Mr McKenzie’s evidence is silent as to whether Ms Scott disclosed any such communications or documents at the meeting. The respondents were noted to have expressly relied on the McKenzie Affidavit in their written submissions in response to the application to reopen the appeal, to contend that he did not knowingly obtain privileged information from Ms Roberts or Ms Scott. It is contended that therefore the respondents are “relying on Mr McKenzie’s version of the substance and effect of the meeting as part of their answer to the Appellant’s application”, which is conduct inconsistent with the maintenance of the confidentiality which the privilege is designed to protect, citing Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 (Mann) at [29]. He submitted that:

By asserting, through Mr McKenzie’s affidavit at [60]-[61], that no privileged information was discussed or conveyed at the meeting, the Respondents have made the contents of the File Note directly relevant to a fact in issue on the application to reopen the appeal and have invited the Court to accept that assertion. That is enough to give rise to an inconsistency with the maintenance of privilege.

19    The appellant submitted the McKenzie Affidavit invites the Court to accept the respondents’ narrative of the meeting, one which the File Note is uniquely positioned to confirm or contradict. In that circumstance, he contended that withholding the File Note would “risk injustice through its real weight or meaning being misunderstood”: citing AWB Limited v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 at [165]. The appellant accepted that a mere denial of the opposing party’s assertion may not suffice to amount to a waiver, but submitted the respondents have gone further by positively asserting

a version of the facts from Mr McKenzie, relied on it in resisting an application to reopen the appeal, and seek to shield the best evidence of what occurred. That is the paradigm of waiver.

20    The appellant invited the Court to inspect the File Note in determining the question of waiver, citing TerraCom Ltd v Australian Securities and Investments Commission [2022] FCA 208; (2022) 401 ALR 143 (TerraCom) at [75]; and TerraCom Ltd v Australian Securities and Investments Commission [2022] FCAFC 151 at [22], submitting that inspection of a document over which privilege is claimed is a recognised mechanism to resolve competing inferences.

Respondents’ submission

21    The respondents submitted there has been no waiver and that there is no need for the Court to inspect the File Note. They contended the party alleging waiver must establish that the contents of the document might be relevant to the question of waiver for the Court to be able to inspect the document: citing TerraCom at [75]-[79]. They asserted the appellant has made no attempt to do so.

22    The respondents submitted that as the appellant puts his case, the precise issue for determination is whether a relevant inconsistency arises due to paragraph [60] of the McKenzie Affidavit, which it does not. They submitted that Mr McKenzie has not put the contents of the 14 March 2021 meeting in issue, for primarily for two reasons. First, that on a proper construction of the affidavit, Mr McKenzie makes a blanket denial of the allegation against him rather than putting the contents of the meeting in issue. They submitted at [17]:

His evidence at [60] is a blanket denial of that allegation, across the entire course of dealings: “I do not recall Emma then, or at any other time, sharing communications or documents exchanged between Roberts-Smith and his lawyers” …. In context, the following sentence is necessarily also a blanket denial: “Nor do I recall her saying anything me to” (i.e. then or at any other time) “that suggested she was sharing information she had obtained from looking at communications or documents exchanged between Roberts-Smith and his lawyers”.

(emphasis in the submission)

23    They submitted the allegation against Mr McKenzie in respect of Ms Roberts is that she passed him privileged and confidential information. The mere fact Mr McKenzie refers to one dealing, before denying she ever gave him privileged information in any of their dealings is said to not place the contents of that dealing in issue, referring to DSE at [115]. Second, even if paragraph [60] is to be read as directed specifically to the meeting, the respondents submitted Mr McKenzie does not put in issue what was actually said at the meeting. They submitted that it is wrong for the appellant to say that the respondents “have positively asserted a version of the facts from Mr McKenzie”. The respondents submitted that Mr McKenzie does not positively assert that Ms Roberts said nothing relevant to the allegation he obtained privileged communications from her, but says that he cannot recall her saying anything that made him think she was sharing the appellant’s privileged communications. Because the central allegation against Mr McKenzie is of wilful misconduct, the respondents submitted that the issue raised by the proposed Amended Notice of Appeal is Mr McKenzie’s perceptions. Mr McKenzie’s evidence is said to be directed to that question, not to the contents of the meeting.

Appellant’s submission in reply

24    In reply, the appellant only addressed the second point raised in the respondents’ submissions. He submitted the proposition that Mr McKenzie does not “deny” that privileged information may have been shared at the meeting, but simply “does not recall” receiving it, is what makes it necessary and fair for the appellant to inspect the File Note. The appellant said he is entitled to test that assertion, and the File Note is the best evidence of what was said and by whom. It is contended:

It would be unjust to permit a party to answer an allegation of forensic misconduct by reference to their own memory of a meeting, while simultaneously shielding a contemporaneous record of that same meeting from scrutiny.

25    The appellant further submitted that the respondents

cannot deny that the meeting is a central factual event, allow Mr McKenzie to give self-serving evidence about his subjective recollections of that meeting, and yet withhold a contemporaneous note of what was actually said.

26    That conduct is said by the appellant to be inconsistent with the maintenance of confidentiality and therefore gives rise to the necessary inconsistency identified in Mann, thereby effecting a waiver of privilege over the File Note.

Consideration

27    The question is whether the McKenzie Affidavit is inconsistent with the maintenance of confidentiality in the File Note, such as to amount to an implied waiver of privilege. The appellant bears the onus of establishing waiver. Questions of waiver are matters of fact and degree.

28    The allegation against Mr McKenzie in relation to Ms Roberts is that she passed him privileged and confidential information. I agree with the respondents’ submission that properly read in its context, in paragraph [60], Mr McKenzie is making a blanket denial of the allegation against him. It may be accepted that there is a reference to the meeting held on 14 March 2021, but the import of that paragraph, in its context, is not confined to that. The appellant has not addressed or otherwise engaged with that submission in reply, or what was contended by the respondents to flow from it (i.e. a denial of privileged information being exchanged in any of their dealings). The appellant’s summary of Mr McKenzie’s evidence in relation to paragraphs [60]-[61], recited above at [16], omitted reference to the emphasised passage in the respondents’ submission at [17] (quoted above at [22]) and thereby misstates the nature of the evidence in paragraph [60], referring only to the meeting itself and not the broader denial.

29    As the respondents submitted:

Put shortly, a party cannot, by asserting an unconfined allegation of disclosure of privileged or confidential information, compel the other party either not to deny that on any occasion there was such disclosure, or to deny it and thereby waive any privilege attaching to a record of any such occasion.

30    That would be the consequence of the appellant’s submission. Consistent with the observations of Allsop J in DSE at [115], quoted above at paragraph [15], I accept the passage in the McKenzie Affidavit is properly characterised as a joinder of issue on a question of fact to which the privileged communication can be seen as relevant. I am not persuaded that Mr McKenzie’s evidence at paragraph [60] of his affidavit is conduct inconsistent with the maintenance of confidentiality.

31    On that basis, the appellant has not established that there has been an implied waiver of the privilege in the File Note.

32    It is therefore not necessary to consider the respondents’ second basis for contending Mr McKenzie has not put the 14 March 2021 meeting in issue. That said, I observe that the appellant’s submission on this topic was inconsistent. As advanced in chief (and apparent from the summary above at [16]), the factual basis of his contention was that Mr McKenzie asserted in paragraph [60] that “no privileged information was discussed or conveyed at the meeting” and therefore the contents of the File Note were directly relevant to a fact in issue. However, in reply, the basis of the appellant’s submission changed. He acknowledged the respondents’ proposition that Mr McKenzie says he “does not recall” receiving privileged material but contended that is the aspect which “is precisely what makes it necessary and fair” for the appellant to inspect the File Note. However, that evidence is directed to Mr McKenzie’s state of mind relevant to the appellant’s allegation against him.

33    Although the Court does have the power to inspect a document, including in relation to the question of waiver, it is a matter of discretion for the Court. I accept that in some cases because of the circumstances it is considered useful to inspect a document in determining the issue of waiver (e.g. TerraCom at [78]), but it is not undertaken as a matter of course. There should be a reason to do so. Given my conclusions above, I do not consider an inspection is required in this case, as I have been able to determine the issue without the Court examining the File Note.

Conclusion

34    For the reasons above, the orders made on 30 April 2025 dismissed the appellant’s application.

Associate:

Dated:    16 May 2025

SCHEDULE