Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Ltd (Interlocutory Rulings) [2025] FCA 504

REASONS FOR JUDGMENT

PERRAM J:

1    On Wednesday 30 April 2025 I made orders setting aside three subpoenas, removing an affidavit from the Court file, prohibiting disclosure of portions of the relevant exhibit, and striking out the appellant’s amended interlocutory application. These are my reasons for making those orders.

Background

2    The respondents published articles about the appellant in which, amongst other things, they suggested that he was guilty of domestic violence and was a hypocrite for publicly supporting Rosie Batty, a domestic violence campaigner. The appellant sued for defamation. The respondents pleaded justification and alleged that the appellant had an extra-marital affair with a woman known in these proceedings only as Person 17 and that during that affair he had punched her in the eye on the evening of 28 March 2018 at the Hotel Realm in Canberra.

3    In 2021, whilst the trial was underway, the second respondent, Mr Nick McKenzie, endeavoured to persuade Person 17 that she should testify against the appellant. A telephone conversation took place between Mr McKenzie and Person 17 around March or April 2021. The telephone conversation was recorded. An affidavit filed by Mr McKenzie suggests that he will give evidence to the Full Court that he did not record it. The suggested inference from this will be that Person 17 was the person who recorded the conversation.

4    Ultimately, Person 17 gave evidence for the respondents at the trial and testified that the appellant had punched her in the eye. The appellant denied this.

5    The trial judge found the affair proved and that there had been an altercation between Person 17 and the appellant that evening at the Hotel Realm. He rejected the appellant’s version of what had happened but was nevertheless not satisfied that Person 17’s evidence was sufficiently reliable to justify the serious conclusion that the appellant had punched her in the eye. The respondents’ defence of justification in relation to the domestic violence allegations therefore failed and the appellant was therefore successful in the part of the case which concerned the allegations made by Person 17.

6    However, this defeat for the respondents was eclipsed by their success in proving that the appellant had been involved in several murders in Afghanistan. In effect, whilst the respondents defamed the appellant by accusing him of domestic violence and hypocrisy, after it was established that he committed several murders, he had no reputation to be harmed by the unproven allegation that he was guilty of domestic violence and a hypocrite.

7    The trial was conducted over 110 days. The appellant then appealed to the Full Court and the appeal was heard over 10 days in February 2024. Judgment was reserved on 16 February 2024.

8    On 15 March 2025, a former solicitor for the appellant received an anonymous email from the email address ellroyferris@proton.me. Attached to the email was a short snippet from the recording of the conversation between Mr McKenzie and Person 17.

9    During the recording Mr McKenzie appears to have made two statements of interest. First: ‘You know the fact they’ve actively like briefing us on his legal strategy in respect of you like yeah we … yeah we’re not learning like we anticipated most of it.’ Secondly: ‘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’.

10    These snippets emerge from a transcript that the appellant’s solicitor, Ms Allen, has prepared of the recording. Mr McKenzie has also prepared his own transcript of the recording which is slightly different to Ms Allen’s. However, for present purposes these differences are immaterial. For completeness, the reference in the transcript to ‘Dean’ is a reference to Mr Dean Levitan, one of the respondents’ solicitors.

11    By an interlocutory application filed on 27 March 2025, the appellant applied to re-open his appeal, to tender further evidence in the form of an affidavit of Ms Allen sworn 27 March 2025 and an exhibit thereto, and to amend his notice of appeal by the addition of ground 17, order sought 3A and Particulars 35 to 38.

12    The fresh evidence foreshadowed in Ms Allen’s affidavit has two elements. First, it attaches the recording which was sent originally from the ellroyferris@proton.me email address. Secondly, it seeks to put into evidence the affidavits which were filed in a separate suit between the appellant and his former wife, Ms Roberts, together with other related evidence. The respondents were not parties to that proceeding which was determined adversely to the appellant by Bromwich J. The heart of the allegation in that proceeding was that Ms Roberts and her friend Ms Scott had been accessing the appellant’s email account and using it against him in his defamation proceedings against the respondents. Bromwich J found this allegation unproven.

13    The essence of the appellant’s present application is to augment the evidence which was before Bromwich J with the new revelation that Mr McKenzie had been briefed on the appellant’s legal strategy and then to put that to the Full Court on appeal. As the application is framed, it does not matter that the appellant in fact won the part of the case which was concerned with Person 17. Why? Because the significant adverse credit findings made by the primary judge in respect of the appellant were related to, amongst other things, revelations that he had engaged in activities such as concealing evidence in his back garden. He now seeks to link the fact that these adverse matters came to light to the suggestion that Ms Roberts and Ms Scott had been accessing his email account and providing this material to the respondents.

14    Ground 17 is in these terms:

There has been a miscarriage of justice and denial of a fair trial to the Appellant in the proceedings below by reason of the Second Respondent’s misconduct.

15    Order sought 3A is in these terms:

In the alternative, there be a new trial ordered pursuant to ss 28(1)(f) and 30 of the Federal Court of Australia Act 1976 (Cth) and a direction made that the Second Respondent give further verified discovery in accordance with the orders for discovery made on 2 August 2019 by Besanko J.

16    Particulars 35 to 38 are in these terms:

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.

36.    The Appellant was unaware of the Second Respondent’s misconduct until after the trial and the hearing of the appeal.

37.    There is at least a real possibility that, had the Second Respondent not engaged in such misconduct, the result of the trial would have been different, in that:

(a)    Had the Second Respondent’s misconduct been known, the Appellant would have moved the Court below to strike out the Respondents’ defences by reason of that misconduct, the outcome of which cannot now be ascertained;

(b)    By reason of the Respondents’ improper access to the Appellant’s confidential and legally privileged information, there is a real possibility that they made forensic decisions below, which they would not otherwise have been in a position to make, which were to the advantage of the Respondents and/or the disadvantage of the Appellant;

(c)    Had the Respondents’ improper access to his confidential and legally privileged information been known, there is a real possibility that the Appellant would have made different forensic decisions at trial to his benefit;

(d)    There is a real possibility that the primary Judge’s assessment of the credit of Ms Roberts and/or Person 17 would have been different;

(e)    Because there is a real possibility that his Honour’s assessment of Ms Roberts’ and/or Person 17’s credit may have been different, there is also a real possibility that his Honour’s assessment of the Appellant’s credit in relation to one or more, or all, issues in the trial may have been different;

(f)    Because there is a real possibility that his Honour’s findings as to credit may have been different, there is a real possibility that his Honour’s findings of fact in relation to the defences of justification and contextual truth may have been different.

38.    In the circumstances, including the seriousness of the misconduct, the nature of the information improperly obtained, and its concealment until after the conclusion of the trial and appeal, it is in the interests of justice – both as between the parties and more broadly in relation to the administration of justice – that the matter be retried.

17    It will be observed that Particular 35 makes serious allegations against Mr McKenzie but does not allege that he in fact used the privileged information in the conduct of the proceedings.

18    On the basis of these matters the appellant also seeks to amend his notice of appeal to seek an order that there be a fresh trial.

19    The Court listed the appeal for a case management hearing on 31 March 2025. At that time, I indicated to the parties that the interlocutory application would need to be dealt with promptly given that a member of the Full Court, Katzmann J, was obliged by s 72 of the Constitution to retire at the start of June 2025. Relevant to this issue is s 14(3) of the Federal Court of Australia Act 1976 (Cth) (‘the Act’) which provides:

Where, after a Full Court (including a Full Court constituted in accordance with this subsection) has commenced the hearing, or further hearing, of a proceeding and before the proceeding has been determined, one of the Judges constituting the Full Court dies, resigns his or her office or otherwise becomes unable to continue as a member of the Full Court for the purposes of the proceeding, then the hearing and determination, or the determination, of the proceeding may be completed by a Full Court constituted by the remaining Judges, if at least 3 Judges remain or, if the remaining Judges are 2 in number and the parties consent, by a Full Court constituted by the remaining Judges.

20    The effect of this provision is that if the appeal is not determined by the time that Katzmann J must retire then either party may abort the appeal by the expedient of not consenting to the remaining members of the bench deciding it. In that situation, the appeal would need to be heard again with a freshly constituted Full Bench. The possibility that either party might be equipped with an option to abort the appeal in this fashion is a matter which weighs in favour of avoiding this outcome if possible without prejudicing the parties.

21    The public interest in the finality of litigation is also relevant. The Court is not dealing with efforts the appellant is seeking to advance ahead of a trial which is yet to take place. Rather, the appellant is pursuing the exercise of the exceptional jurisdiction to re-open an appeal, not a trial, after it has been argued and to lead fresh evidence.

22    In light of those considerations, the following timetabling orders were then made on 2 April 2025:

(1)    The Respondents to file and serve any affidavit evidence by 4 pm on Monday 14 April 2025.

(2)    The Appellant to file and serve any affidavit evidence in reply by 4 pm on Tuesday 22 April 2025.

(3)    The Appellant to file and serve submissions by Thursday 24 April 2025.

(4)    The Respondents to file and serve submissions by Tuesday 29 April 2025.

(5)    There be listed before the Court on Thursday 1 May 2025 and Friday 2 May 2025 the hearing of the appellant’s interlocutory application together with all submissions the parties intend to make on the appeal if leave be granted to amend the notice of appeal.

(6)    Without prior leave of the Court written submissions are not to exceed 10 pages.

(7)    The parties provide the Court with an application book in digital format together with 4 paper copies thereof before 11 am on Wednesday 30 April 2025.

23    The availability of the members of the Full Bench to sit and hear the re-opening application prior to the retirement of Katzmann J was confined to Thursday 1 May 2025 and Friday 2 May 2025. There were no other days on which the matter could be heard prior to the retirement of Katzmann J.

24    In accordance with Order 1, the respondents filed an affidavit of Mr McKenzie on 14 April 2025. The appellant did not serve any evidence in reply by 22 April 2025 under Order 2.

25    Meanwhile, on Thursday 17 April 2025 at the request of the appellant (but without hearing from the respondents), the Court issued a series of subpoenas to produce documents. A notice to produce was also served by the appellant on the second respondent. On the same day, and also at the request of the appellant, the Court issued subpoenas to give evidence to Mr Peter Barlett and Mr Dean Levitan, two of the respondents’ solicitors. The subpoenas to give evidence were made returnable before the Full Court on Thursday 1 May 2025.

26    The subpoenas to produce documents and the notice to produce were made returnable before me on Wednesday 23 April 2025. At their return, the respondents submitted that they were in many respects defective and should be set aside. The respondents also objected to the notice to produce served on the second respondent for similar reasons.

27    Mr Bartlett and Mr Levitan appeared before me on 23 April by senior counsel to join in the respondents’ applications to set aside the subpoenas addressed to them so far as they required the production of documents. They also indicated that they would be applying to set aside the subpoenas addressed to them so far as the subpoenas required them to attend and give evidence. I granted Mr Bartlett and Mr Levitan leave to file interlocutory applications seeking orders to that effect. On 23 and 24 April 2025, they each filed an application to that effect which were returnable before me on Tuesday 29 April 2025.

28    On Thursday 24 April 2025 I made orders setting aside some of the subpoenas to produce documents, limiting the scope of others and limiting the scope of the notice to produce. My reasons for doing so were subsequently published on 28 April 2025: Roberts-Smith v Fairfax Media Publications Pty Ltd [2025] FCA 414. Also on 24 April 2025, Mr McKenzie filed a second affidavit correcting an error in his first affidavit.

29    On Monday 28 April 2025, at the request of the appellant, the Court issued a subpoena to give evidence to Person 17. The request for leave to issue the subpoena was accompanied by a letter from Person 17’s solicitor saying that she, Person 17, did not agree with Mr McKenzie’s affidavit and that if she was served with a subpoena she would provide the appellant with an affidavit in response. Like the subpoenas addressed to Mr Bartlett and Mr Levitan, the subpoena to Person 17 was made returnable before the Full Court on Thursday 1 May 2025.

30    Also on the evening of Monday 28 April 2025, the appellant served a document entitled ‘Amended Interlocutory Application’. There are three relevant aspects of the Amended Interlocutory Application. First, it expands the scope of the application to adduce fresh evidence now to include the two affidavits of Mr McKenzie, another affidavit of Ms Allen and any oral testimony adduced from Messrs McKenzie, Bartlett and Levitan at the hearing on 1 and 2 May 2025.

31    Secondly, it further amends the proposed amended notice of appeal to include a new Particular 36A alleging that the respondents failed to give proper discovery at trial and seeking a new trial on that basis. Cognate additions and amendments are also made to Particular 37.

32    Thirdly, it further amends Particular 35. The new Particular 35 is in these terms:

The Second Respondent, Mr McKenzie, engaged in wilful misconduct in the proceedings below by improperly and unlawfully obtaining, retaining and using the Appellant’s confidential and privileged communications with his legal representatives, and further, or alternatively, information derived from the Appellant’s confidential and privileged communications with his legal representatives.

33    On Tuesday 29 April 2025 I heard Mr Bartlett and Mr Levitan’s applications to set aside the subpoenas to give evidence addressed to them and reserved judgment.

34    On the same day, the respondents lodged an interlocutory application seeking to strike out the appellant’s amended interlocutory application.

35    That evening, at 7.39 pm, the appellant’s solicitors received a copy of an affidavit of Person 17 dated 29 April 2025 from Person 17’s solicitors. Sixteen minutes later, at 7.55 pm, the appellant’s solicitors filed that affidavit in these proceedings.

36    The matter was urgently relisted at the request of the respondents at 10.30 am on Wednesday 30 April 2025. At that time the respondents applied to have the affidavit of Person 17 removed from the Court file under rule 6.01 of the Federal Court Rules 2011 (Cth) (‘FCR’) and for the subpoena addressed to her to be set aside. FCR r 6.01 provides:

6.01    Scandalous, vexatious or oppressive matter

If a document filed in a proceeding contains matter that is scandalous, vexatious or oppressive, a party may apply to the Court for an order that:

(a)    the document be removed from the Court file; or

(b)    the matter be struck out of the document.

37    At the conclusion of the argument, I ordered that Person 17’s affidavit be removed from the Court file and I set aside the subpoena addressed to her with effect from the date of its issue. I also made suppression orders in respect of portions of the exhibit to Person 17’s affidavit pursuant to s 37AF of the Act. At the same time, I made orders setting aside the subpoenas to give evidence addressed to Mr Bartlett and Mr Levitan and struck out the appellant’s amended interlocutory application.

38    It is necessary then to provide my reasons for the following orders:

(a)    The order striking out the amended interlocutory application;

(b)    The orders setting aside the subpoenas to give evidence to Mr Bartlett and Mr Levitan;

(c)    The order removing the affidavit of Person 17 from the Court file;

(d)    The order prohibiting the disclosure of portions of the exhibit to the affidavit of Person 17; and

(e)    The order setting aside the subpoena to Person 17 with effect from the date of its issue.

The Amended Interlocutory Application

39    The appellant filed his amended interlocutory application without a grant of leave from the Court to do so. The respondents then filed an interlocutory application to strike out the amended interlocutory application pursuant to FCR rr 1.21 and 1.32. FCR r 1.21 allows an application to be filed seeking an order from the Court where a procedure is not prescribed in the Act, the FCR or any other act. FCR r 1.32 authorises the Court to make any order it considers appropriate in the interests of justice.

40    Whilst the rules appear to permit a party to amend an interlocutory application without leave, that entitlement cannot be used in a way which results in injustice to the other party. An amendment of an interlocutory application without leave will result in injustice to the other party where, had leave been necessary, leave would have been refused. In a similar fashion to FCR r 16.52, FCR r 1.32 operates to permit the Court to disallow amendments made to an interlocutory application without leave. On such an application, the party who made the amendment, here the appellant, bears the burden of showing that the amendment is one which should be permitted to stand.

41    The amended interlocutory application broadens the case of misconduct alleged against Mr McKenzie (by amending Particular 35) and adds allegations that the respondents have failed to give proper discovery (by introducing Particular 36A). These Particulars require separate treatment.

The New Particular 35

42    The original form of Particular 35 is set out above at [16] and the amended form is at [32].

43    The amendment to Particular 35 should be disallowed for three reasons. First, the allegation is unparticularised. Secondly, it no longer depends on the recording of the telephone conversation between Person 17 and Mr McKenzie. Thirdly, the appellant has delayed in articulating the amendment and has no proffered no explanation for that delay.

Lack of particularity

44    The amended form of Particular 35 now alleges that Mr McKenzie had access to the appellant’s ‘confidential and privileged communications with his legal representatives’. The confidential and privileged communications are not identified. The appellant submits that he cannot particularise the communications because Mr McKenzie did not take steps to preserve potentially discoverable evidence and, in fact, set up his Signal app so that it destroyed communications within a specified time.

45    This submission conflates the amended Particular 35 (which is not about the inadequacy of the respondent’s discovery) with the amended Particular 36A (which is). Whilst the appellant should not be required to particularise the documents which have not been discovered to him (since he cannot know what they are), the amended Particular 35 is not concerned with, and does not allege, any failure to give discovery.

46    Rather, Particular 35 alleges that Mr McKenzie has used the appellant’s confidential and privileged communications. No reason appears why the appellant should not be required to say what these privileged communications are. If he knows enough to make that allegation, he must know enough to articulate a reasonable basis for it, including to say what the communications are.

47    Two further matters should be noted. First, the fact that there may be Signal messages from or to Mr McKenzie that no longer exist cannot provide a proper basis for alleging that he had access to confidential and privileged communications of the appellant. This is because the contents of those messages are unknown. From nothing, nothing can be deduced. Secondly, not only are no particular communications identified in the amended Particular 35, but there is also no evidence that any communication identified in the evidence filed thus far is privileged. In particular, there is no affidavit from the appellant’s solicitor identifying a communication to which Mr McKenzie is said to have had access and giving the routine evidence that the communication was a privileged one.

Substantial change in case theory

48    In its original form, Particular 35 alleged that Mr McKenzie had access to the appellant’s ‘legal strategy concerning the trial’. That allegation could be mapped on to the contents of the recording where Mr McKenzie appears to have said words to that effect. To meet the case originally pleaded by Particular 35, the respondents filed the affidavit of Mr McKenzie. The effect of Mr McKenzie’s evidence, if accepted, is that he did not have access to any privileged material of the appellant. The substitution of the reference to the appellant’s ‘legal strategy concerning the trial’ with the new allegation that Mr McKenzie had accessed the appellant’s (unparticularised) confidential and privileged communications in the amended Particular 35 means that Mr McKenzie’s affidavit no longer responds to the appellant’s allegations because those allegations no longer depend on the telephone recording to which Mr McKenzie’s affidavit is largely addressed.

49    Quite apart from the fact that the new allegation is unparticularised, it is also therefore procedurally unfair. The affidavit of Mr McKenzie is not apt to meet the case now advanced in the amended version of Particular 35. If the amendment is permitted to stand, Mr McKenzie will need to be given a fresh opportunity to respond to Particular 35 (even assuming it was properly particularised).

Unexplained delay

50    In putting forth the amended Particular 35, the appellant does not identify any particular document, other than the alleged admission in the recording, which underpins his allegation that Mr McKenzie had improperly accessed and used his confidential and privileged communications. However, he does advance a submission that he was justified in not filing his amended interlocutory application until Monday 28 April 2025. He submits that until the occurrence of four particular sets of events he could not advance his case on amended Particular 35. These are:

(a)    The receipt of Mr McKenzie’s two affidavits.

(b)    The articulation by the respondents of how they understood amendments to the notice of appeal, including Particular 35, at a hearing on 23 April 2025 before me.

(c)    Arguments made in response to the issue of subpoenas to Mr Levitan and Mr Bartlett.

(d)    Documents produced by the respondents on 28 April 2025 in response to the notice to produce dated 16 April 2025.

51    This submission is unsupported by any evidence that these matters are the actual reasons why the appellant did not amend Particular 35 until Monday 28 April 2025. I will return to the significance of this below. However, even on their own terms, the suggested matters are unpersuasive.

52    As to (a), Mr McKenzie’s first affidavit was served on 14 April 2025. His second short affidavit is a correcting affidavit and was served on 24 April 2025. Its contents are immaterial for present purposes. Mr McKenzie’s first affidavit showed that there were documents of his which had not been discovered.

53    The parties were before me on various applications in the fortnight before the hearing on Thursday 1 May 2025. At no point before the appellant sought a subpoena to Person 17 to give evidence did he tell me that he was considering adding a new claim arising from Mr McKenzie’s affidavit of 14 April 2025. If Mr McKenzie’s first affidavit was a cause of the filing of the amended interlocutory application one would infer that the matter would have been raised shortly after 14 April 2025. An inference is necessary because the appellant has not explained what he or his advisors were doing after they received Mr McKenzie’s affidavit on 14 April 2025.

54    As to (b) and (c), it is true that at the hearing on 23 April 2025, the respondents did articulate an argument that Particular 35 as it then stood did not advance an allegation of misconduct against anyone apart from Mr McKenzie and that this had significant implications for the appellant’s contention that the respondents’ solicitors had used the appellant’s privileged communications in the conduct of their defence.

55    However, this was not a new point. When the matter came before me for case management on 31 March 2025 senior counsel for the appellant made some observations which implied that Particular 35 might encompass misconduct by persons other than Mr McKenzie. The respondents’ solicitors wrote to the appellant’s solicitors on 3 April 2025 pointing out that the amended notice of appeal did not contemplate misconduct by any person other than Mr McKenzie. They received a response on 4 April 2025 which denied this was so. On 8 April 2025, the respondents’ solicitors responded saying that they would be holding the appellant to the terms of his interlocutory application and amended notice of appeal. The following day, the appellant replied to say, among other things, that the respondents misconceived the particulars of the amended notice of appeal.

56    Thus, when the respondents made this point on 23 April 2025, they were reiterating a point which had been made in writing on 3 April 2025 and was the subject of correspondence on 4, 8 and 9 April 2025. The appellant’s considered position from 4 April 2025 was that the original form of Particular 35 did cover misconduct by persons other than Mr McKenzie (including Mr Levitan and Mr Bartlett).

57    As to (d), the appellant did not explain, either in a submission or in evidence, what was contained in the documents produced by the respondents on 28 April 2025 that provided an impetus for the amended form of Particular 35 or Particular 36A. The only submissions which were made about the significance of the documents produced on 28 April 2025 were oral but these related to a different issue, namely, whether the subpoenas to Mr Levitan and Mr Bartlett should be set aside. In those circumstances, I am therefore unable to assess the submission in (d).

58    In any event, taking (a) to (d) together, I do not think that the articulation in Court on 23 April 2025 by the respondents of their view of how the original Particular 35 operated is likely to have caused the appellant to change his position. However, on 28 April 2025 I published reasons for judgment in Roberts-Smith v Fairfax Media Publications Pty Ltd [2025] FCA 414 at [33]-[34] wherein I indicated that I agreed with the respondents about the operation of the former Particular 35. It was later that day that the appellant filed his amended interlocutory application with the new form of Particular 35.

59    I would therefore be disinclined to accept the appellant’s submission that what provoked the interlocutory application was the matters in (a)-(d). A more proximate provocation would appear to have been the reasons for judgment in Roberts-Smith v Fairfax Media Publications Pty Ltd [2025] FCA 414. I therefore do not accept the appellant’s submission that the amendment to Particular 35 was brought about by matters (a)-(d).

60    Apart from that, there is no evidence from the appellant’s side to support the submission. None of the appellant’s advisors have sworn that the matters in (a)-(d) are the reason the amended interlocutory application was filed. That in itself is a sufficient reason to reject the submission. It is possible to infer that the appellant’s advisors misconceived from the outset how Particular 35 (as initially postulated) operated and when confronted with an adverse judicial decision on 28 April 2025 determined it appropriate to amend.

Conclusions on amended Particular 35

61    Each of these three reasons independently persuades me that it would be unjust for amended Particular 35 to remain on foot. The amendment should be disallowed pursuant to FCR r 1.32.

The Discovery Issue at Particular 36A

62    Amended Particular 36A is in these terms:

36A    The Second Respondent failed to comply with his discovery obligations in accordance with the order for discovery made on 2 August 2019 by Besanko J and the Federal Court Rules 2011 (Cth) by reason of his:

(a)    failing to discover communications with sources including Danielle Scott, Emma Roberts and Person 17, including communications conducted using the encrypted messaging application Signal, and failing to disclose the destruction or loss of such communications and to state when those documents were last in his control and what became of them, as required by r 20.17(2)(b);

(b)    failing to discover communications and documents relating to the receipt and transmission of screenshots, images and other media files obtained from Danielle Scott, Emma Roberts and Person 17 including the means by which such material was received and forwarded to his solicitors;

(c)    failing to discover file notes or records of the meeting held with Emma Roberts and Danielle Scott on 14 March 2021, or alternatively failing to disclose those documents and claim any privilege over them as required by r 20.17(2)(c); and

(d)    verifying by affidavit that his Lists of Documents were complete and accurate when, in truth, material categories of directly relevant documents were omitted, thereby providing a false and misleading verification contrary to r 20.22.

63    This allegation was first put forward on Monday 28 April 2025 with the hearing scheduled to commence on Thursday 1 May 2025. The amendment should be disallowed under FCR r 1.32 for two reasons. First, the respondents cannot be expected to respond to this case on two days’ notice. Secondly, there is no evidence explaining why amended Particular 36A was not put forward sooner.

Impossibility of responding in two days

64    The appellant accepts in his written submissions that the respondents cannot reasonably be expected to meet this new case in the two days remaining before the hearing commences on Thursday 1 May 2025. He proposes that the hearing proceed on the two days allotted on all issues apart from amended Particular 36A and that the matter go over to a date in the week commencing Monday 12 May 2025 in relation to amended Particular 36A. The respondents would then be given an opportunity to meet the amended Particular 36A during the hiatus between the two hearings and further evidence and submissions could then take place at the resumed hearing.

65    This proposal is not realistic because the evidentiary footprint created by amended Particular 36A is much larger than the appellant’s submission assumes. Mr McKenzie’s affidavit shows that he had discussions with each of Ms Scott, Ms Roberts and Person 17. Some of these discussions took placed by telephone, others occurred over encrypted messaging apps and in at least one case there was a face-to-face meeting. In some instances, Mr McKenzie reduced his discussions to the form of memoranda which he sent by email to his own solicitors. Eventually, Ms Scott, Ms Roberts and Person 17 each provided the respondents with a statement and/or testified on their behalf. Not all the discussions with Mr McKenzie concerned the evidence each might have been prepared to give; some were concerned with information about the appellant. In relation to the instant messages, Mr McKenzie had his Signal app set up to delete messages after a relatively short period of time.

66    The existence of this material has been brought to light by the affidavit of Mr McKenzie. The appellant submits that the terms of the affidavit show that these kinds of documents existed and that they were of a nature such that they should have been discovered. However, the respondents submit that none of these kinds of documents were discoverable. They draw attention to FCR r 20.02 which states:

20.02    Privilege

An order made under this Part does not require the person against whom the order is made to produce any document that is privileged.

67    The question of whether Mr McKenzie’s communications with the three women or related documents were privileged is not a straightforward issue. Section 119 of the Evidence Act provides:

119    Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a)    a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or

(b)    the contents of a confidential document (whether delivered or not) that was prepared;

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

68    For the communications to have been privileged it will be necessary for each of them to have been a confidential communication made for the dominant purpose of the respondents being provided with legal services relating to an Australian or overseas proceeding to which the person holding the privilege was a party. Even assuming that the question of dominant purpose is not likely to require much effort on the respondents’ part, this is not so in the case of the question of confidentiality. Section 117 of the Evidence Act provides that a communication will be confidential if it was made in circumstances importing an express or implied obligation by the person receiving or making the communication not to disclose its contents.

69    The question of privilege would therefore require consideration of the circumstances in which each communication occurred and whether they gave rise to an express or implied obligation of confidentiality. This is likely to require further evidence from Mr McKenzie about those circumstances. The respondents may also seek to elicit evidence from Ms Scott and Ms Roberts. It is possible that the appellant may seek to adduce evidence from Person 17 in response to any such evidence. Evidence from the solicitors may also be relevant.

70    Gathering this evidence will not be a trivial matter. If what was before the Court was an ordinary trial process, I think it unlikely the evidence or submissions in respect of that evidence could be prepared by both sides by 16 May 2025, particularly with the time taken up with the hearing on 1 and 2 May 2025.

No explanation for appellant’s delay

71    The appellant submitted that he could not reasonably be expected to have brought the amended interlocutory application until the occurrence of the four events I have set out above when dealing with the amendment to Particular 35. For the same reasons I have given there, I do not accept that the submission explains why the interlocutory application was not amended shortly after 14 April 2025 when Mr McKenzie’s affidavit was served. In any event, the submission is unsupported by any evidence. On the face of it, the appellant knew enough from 14 April 2025 to raise the discovery issue but did not do so until 28 April 2025. In an ordinary case, a two-week delay might be regarded as de minimis, but in the circumstances I have outlined above, this is not so.

Conclusions on amended Particular 36A

72    For both of the above reasons, the amendment by the addition of Particular 36A will be disallowed pursuant to FCR r 1.32.

The Balance of the Amended Interlocutory Application

73    The amendments in the balance of the amended interlocutory application are cognate to Particulars 35 and 36A. Thus, once the amendments to Particulars 35 and 36A are rejected, the other amendments fall away. For those reasons, I will disallow all of the amendments to the interlocutory application dated 27 March 2025. To regularise the file, I will strike the amended interlocutory application out since, shorn of its amendments, it serves no purpose.

The Subpoenas to Mr Bartlett and Mr Levitan to Give Evidence

74    As it now stands, Particular 35 contains no allegations against Mr Bartlett or Mr Levitan. It also does not allege that Mr McKenzie used the privileged material. It seems very unlikely that Mr Bartlett or Mr Levitan will be able to give evidence which will assist the appellant in proving what he alleges against Mr McKenzie. Also relevant is that what is before the Court is an application by the appellant to re-open his appeal. Before taking the unusual step of requiring the solicitors for the respondents to give evidence for the appellant in an interlocutory application filed after an appeal has been argued, I need to be persuaded that this serves a legitimate forensic purpose. I am not so persuaded.

The Affidavit of Person 17

75    It is useful to restate the chronology concerning the subpoena to Person 17. The evidentiary timetable required the appellant to file any evidence in reply to the affidavit of Mr McKenzie by 22 April 2025. On the night of Sunday 27 April 2025 the Court was approached by the appellant’s solicitors via email to issue a subpoena to give evidence to Person 17. The request for leave to issue the subpoena was accompanied by a letter from Person 17’s solicitor saying that she, Person 17, did not agree with Mr McKenzie’s affidavit ‘in a number of respects’ and that she was ‘prepared to provide an affidavit in response subject to being served with a subpoena to give evidence’. On the morning of 28 April, I granted leave to issue the subpoena and the subpoena to Person 17 was made returnable before the Full Court on Thursday 1 May 2025. On the evening of Tuesday 29 April 2025, at 7.39 pm, the appellant’s solicitors received a copy of an affidavit of Person 17 dated 29 April 2025 from Person 17’s solicitors. Sixteen minutes later, at 7.55 pm, the appellant’s solicitors filed that affidavit in these proceedings.

76    I have set out FCR r 6.01 at [36]. It allows the Court to strike out matter in a filed document that is scandalous, vexatious or oppressive, and to remove the document from the Court file.

77    The filing of the affidavit of Person 17 is oppressive for three reasons. First, there is no prospect that the respondents can meet Person 17’s affidavit by the hearing on Thursday 1 May 2025. Secondly, the affidavit contains serious allegations against third parties which are not relevant to the dispute before the Court. Thirdly, it is in largely inadmissible form. For those reasons, I removed the affidavit from the Court file.

78    I also made a suppression order in relation to a confidential deed of settlement between Person 17 and some of the respondents concerning Person 17’s allegations against Mr McKenzie and the Nine Group. Once Person 17’s affidavit was removed from the Court file under FCR r 6.01, the exhibit to that affidavit (which is not on the Court file) had no continuing relevance.

79    As part of the process of serving Person 17’s affidavit, the confidential deed of settlement has now been provided to the parties to this litigation and its confidentiality is to that extent impaired. Person 17 did this in apparent response to the subpoena to give evidence. Had I known when I authorised the issue of the subpoena that it would be used by Person 17 to circumvent the confidentiality terms of the deed in this way, I would not have granted leave for the subpoena to be issued.

80    The respondents’ contractual entitlement to have Person 17 keep the settlement confidential has potentially been impaired by this Court’s issue of the subpoena. I say potentially because the subpoena did not require Person 17 to produce an affidavit exhibiting the deed of settlement. It required her to attend and give evidence.

81    Whilst the confidential nature of the information has not become public it is in the hands of the parties and their lawyers and will also have been obvious to anyone who was in Court when the matter was argued.

82    It is in the interests of the administration of justice that the Court’s subpoena machinery not be used in this fashion and that a party harmed by such a use be restored as best as can be done. The best that can be done is to prevent the parties and anyone in Court when the matter was argued from publishing the fact of the deed or its contents.

83    It was for those reasons that I made the following suppression order on 30 April 2025:

8.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and on the grounds specified in s 37AG(1)(a), there is to be no disclosure, by publication or otherwise, of the document reproduced at pages 40-48, 144-152 and 182-190 of Exhibit P17-1 to the Person 17 Affidavit.

9.    Paragraph 8 of these orders does not prohibit disclosures to and between the following people:

(a)    Judges of this Court;

(b)    necessary Court staff (including transcription service providers);

(c)    the parties;

(d)    legal representatives of the parties instructed in these proceedings, including in-house counsel of the first respondent; and

(e)    judicial officers and necessary staff of any court hearing an appeal from any decision made in the course of this proceeding.

84    In making the suppression orders, I took into account under s 37AE of the Act that a primary objective of the administration of justice is to safeguard the public interest in open justice. However, the principles of open justice are not engaged where what is concerned is a document which is not on the Court file and which is exhibited to an affidavit that has been removed from the Court file and that has not used in open court. I made the orders on the grounds that it was necessary to prevent prejudice to the administration of justice.

The subpoena to person 17

85    There remains the question of the subpoena issued to Person 17. The time for the appellant to file evidence in reply was set by the timetable to Tuesday 22 April 2025. It was apparent from 14 April 2025 when the affidavit of Mr McKenzie was served that Person 17 was a relevant witness. Yet the Court was not approached for the issue of the subpoena until Sunday 27 April 2025 and the affidavit itself did not appear until the evening of Tuesday 29 April 2025. On the evidence before the Court the appellant’s solicitors did not attempt to contact Person 17 until Friday 25 April 2025 when his solicitors wrote to hers. Correspondingly, there is no evidence from the appellant or his solicitors as to why it took 11 days for the appellant to determine that he needed to speak to Person 17 and perhaps call her as a witness.

86    The subpoena should be set aside for five reasons. First, the time for the appellant’s evidence in reply to be filed was Tuesday 22 April 2025 but the affidavit was only filed on the evening of Tuesday 29 April 2025. Secondly, the Court was not notified of the possibility that Person 17 might be called as a witness at any time during the several interlocutory applications in the preceding two weeks. Indeed, unlike the appellant’s 17 April 2025 requests for subpoenas to be issued to the respondents’ solicitors to give evidence, the appellant only initially requested a subpoena to produce documents to Person 17, which the Court set aside on 24 April 2025. Thirdly, the relevance of Person 17 was apparent from the time that Mr McKenzie’s affidavit was served on Monday 14 April 2025. Fourthly, there is no explanation for why the appellant did not contact Person 17 until Friday 25 April 2025 when his solicitors wrote to hers asking if she would speak with them. Fifthly, there is no prospect that the respondents can meet the affidavit in the single day which remains before the hearing.

87    The orders I made also included one which set aside the subpoena ab initio. As I have explained above, if I had known what has now become clear, I would not have granted leave for the subpoena to be issued. In that circumstance, it was appropriate to set the subpoena aside ab initio.

Associate:

Dated:    23 May 2025

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