Roberts-Smith v Fairfax Media Publications Pty Limited (No 21)

[2021] FCA 893

FEDERAL COURT OF AUSTRALIA

Roberts-Smith v Fairfax Media Publications Pty Limited (No 21) [2021] FCA 893

File numbers:

NSD 1485 of 2018
NSD 1486 of 2018
NSD 1487 of 2018

Judgment of:

BESANKO J

Date of judgment:

2 August 2021

Date of publication of reasons:

3 August 2021

Catchwords:

PRACTICE AND PROCEDURE — defamation proceedings — adjournment of trial — where respondents have commenced their case — where an outbreak of COVID-19 has resulted in interstate border closures and major restrictions being imposed in New South Wales — effects of COVID-19 pandemic on in-person hearings and witnesses’ ability to travel — trial adjourned

Cases cited:

Roberts-Smith v Fairfax Media Publications Pty Limited (No 17) [2021] 764

Roberts-Smith v Fairfax Media Publications Pty Limited (No 20) [2021] FCA 824

Division:

General Division

Registry:

New South Wales

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

9

Date of hearing:

28 July 2021

Counsel for the Applicant:

Mr B McClintock SC with Mr A Moses SC, Mr M Richardson and Mr P Sharp

Solicitor for the Applicant:

Mark O'Brien Legal

Counsel for the Respondents:

Mr N Owens SC with Ms L Barnett and Mr C Mitchell

Solicitor for the Respondents:

MinterEllison

Counsel for the Commonwealth of Australia:

Ms C Ernst

Solicitor for the Commonwealth of Australia:

Australian Government Solicitor

ORDERS

NSD 1485 of 2018

BETWEEN:

BEN ROBERTS-SMITH

Applicant

AND:

FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720) (and others named in the Schedule)

First Respondent

NSD 1486 of 2018

BETWEEN:

BEN ROBERTS-SMITH

Applicant

AND:

THE AGE COMPANY PTY LIMITED (ACN 004 262 702) (and others named in the Schedule)

First Respondent

NSD 1487 of 2018

BETWEEN:

BEN ROBERTS-SMITH

Applicant

AND:

THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED (ACN 008 394 063) (and others named in the Schedule)

First Respondent

ORDER MADE BY:	BESANKO J
DATE OF ORDER:	2 AUGUST 2021

THE COURT ORDERS THAT:

1.The applicant’s application for orders that any witness who has been served with a subpoena to attend to give evidence at the hearing and wishes to submit that they be excused from attending the hearing in Sydney on the basis of hardship, file an affidavit setting out the reasons why they cannot attend a hearing in Sydney be refused.

2.The applicant’s application that the Court fix the dates of 14 to 25 February 2022 for the making of closing submissions be refused.

3.The trial be adjourned to Monday, 1 November 2021.

4.The matter be listed for a case management hearing on Friday, 1 October 2021 at 9:30 am.

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

REASONS FOR JUDGMENT

BESANKO J:

1. These brief reasons relate to the adjournment of the trial, a request by the applicant for an order with respect to witnesses who have been subpoenaed to give evidence at the trial and the fixing of dates for the making of closing submissions in February 2022.  These reasons should be read with my reasons in Roberts-Smith v Fairfax Media Publications Pty Limited (No 17) [2021] FCA 764 and Roberts-Smith v Fairfax Media Publications Pty Limited(No 20) [2021] FCA 824.

2. There is no dispute between the parties that the trial must be adjourned for a reasonably substantial period.  At one point, other means of continuing the trial were suggested.  First, it was suggested that the trial might be relocated from New South Wales to another State.  In a detailed letter from the Australian Government Solicitor on behalf of the Commonwealth dated 22 July 2021, the Commonwealth provided an estimate of eight to 12 weeks to replicate the current security and other arrangements in another State.  Neither party pursues this option and I have already indicated that I do not consider it to be a suitable option. 

3. Secondly, it was suggested that the trial may proceed hereafter with evidence given by audio‑visual link.  Again, in a letter from the Australian Government Solicitor on behalf of the Commonwealth dated 27 July 2021, the Commonwealth set out its position with respect to sensitive witnesses giving evidence by audio-visual link.  The Commonwealth maintains that the closed Court portions of the trial could not occur by audio-visual link.  Neither party pursues this option and, again, I have already indicated that I do not consider it to be a suitable option. 

4. The trial must be adjourned and the only question is for how long.  The respondents suggested that it be adjourned to 1 November 2021.  The applicant, while stressing his desire to proceed with the case, did not argue strenuously against this date.  In any event, I consider that it is appropriate to adjourn the trial to 1 November 2021.  The stay at home order is in place until the end of August 2021 and there is at least a reasonable possibility that it will be extended for a period thereafter.  Even after the stay at home order has ceased to operate, it is necessary to build in a period before interstate borders are opened. 

5. There is also a need for certainty, or as much certainty as possible, as to the date of the resumption of the trial.  There are potentially many witnesses still to be called in this trial and the logistical arrangements for these witnesses are substantial.  The respondents indicate that they propose to call in the order of 24 witnesses, of whom some 19 are interstate, with a not insignificant number in Western Australia.  The applicant has given notice that he may call 19 witnesses in reply to the defence of justification. 

6. The applicant seeks orders in the following terms:

   2.On or before 24 September 2021, any witness who:

   a)has been served with a subpoena to attend to give evidence at the hearing; and

   b)wishes to submit that they be excused from attending the hearing in Sydney on the basis of hardship,

   must file an affidavit setting out the reasons why they cannot attend a hearing in Sydney.

   3.The matter be listed for a case management hearing on 1 October 2021 to hear any application by any witness who has served an affidavit in compliance with Order 2 above.

7. I propose to hold a case management hearing on 1 October 2021.  I do not propose to make the orders sought by the applicant.  It seems to be undesirable to make such orders in such unpredictable circumstances, and, in my opinion, it is appropriate to maintain a degree of flexibility.  The question of witnesses will be debated at the case management hearing on 1 October 2021.  The respondents have commenced their case.  If the trial proceeds on 1 November 2021, then, in the normal course of events, they will be required to present their witnesses.  In the normal course, they will be required to present their witnesses without any interruption, or substantial interruption, and, in those circumstances, I would expect them to raise any issues with respect to the attendance of their witnesses so as to avoid any interruption, or at least any substantial interruption, in the progress of the trial.  It hardly needs saying that these observations apply equally to the applicant when it comes to such evidence as he may call in reply.

8. The applicant also sought an order that I fix 14 February to 25 February 2022 as dates for the making of closing submissions.  In my opinion, it is too early to do that.  The evidence actually called and the nature of the issues as they emerge from that evidence will be relevant to such orders as I may make as to the provision of both oral and written submissions.  The trial has not reached the point where sound and sensible decisions can be made about those matters. 

9. I will make an order adjourning the trial to 1 November 2021 and I will also make an order that there be a case management hearing on 1 October 2021 at 9.30 am.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.

Associate:       

Dated:       3 August 2021

SCHEDULE OF PARTIES

NSD 1485 of 2018 NSD 1486 of 2018 NSD 1487 of 2018
Respondents
Second Respondent:	NICK MCKENZIE
Third Respondent:	CHRIS MASTERS
Fourth Respondent:	DAVID WROE