Roberts-Smith v Fairfax Media Publications Pty Limited (No 16)

In Roberts-Smith v Fairfax Media Publications Pty Limited, the Federal Court considered an application by the applicant, Ben Roberts-Smith, to set aside subpoenas and a notice to produce documents. The primary issue was whether the subpoenas and notice were too broad, oppressive, or constituted fishing expeditions. Another aspect of the case involved the relevance of covert recordings of Roberts-Smith to his claim for aggravated damages. The court had to determine if these subpoenas and the notice had legitimate forensic purposes and whether they were relevant to the case.

The court found that while the recordings of Roberts-Smith published in the article were pertinent to his claim for aggravated damages, other recordings were not directly linked to the notice to produce. Although the applicant had the right to consider the recordings containing the comments attributed to him, the court held that a notice to produce was not a substitute for the discovery process. The court concluded that one of the subpoenas was overly broad and should be set aside, while the others were deemed legitimate and enforceable. Regarding the notice to produce, the court upheld the request for recordings mentioned in the article but dismissed the broader request.

The court set aside the subpoena addressed to Dr Parbodh Gogna, finding it too broad. The application to set aside the other subpoenas was dismissed. The court decided to hear further submissions regarding paragraph 2 of the notice to produce before making a final order. The final orders included setting aside the subpoena to Dr Gogna and dismissing the broader application, while leaving the decision on paragraph 2 of the notice to produce pending further submissions.