Roberts-Smith v Fairfax Media Publications Pty Limited (No 32)

In the case of Roberts-Smith v Fairfax Media Publications Pty Limited (No 32), the central dispute involved an application to produce and for leave to inspect, uplift and copy documents, where the question of legal professional privilege was paramount. The application was made in the context of a defamation proceeding, with the respondents alleging collusion among witnesses in providing false evidence. The respondents argued that the documents in question were not protected by privilege because they were created in furtherance of a fraud.

The legal issues before the court included whether the respondents had established a prima facie case of fraud sufficient to displace the claim of privilege, and the admissibility of the outlines of evidence filed by the applicant. The court had to consider whether the outlines of evidence could be considered as admissible evidence in the context of this application, and whether the respondents had provided sufficient evidence to establish the alleged collusion.

The court's reasoning involved a detailed analysis of the status and admissibility of outlines of evidence in defamation proceedings. It was concluded that outlines of evidence serve the purpose of providing notice of the evidence to be given by the witness and are not, without leave of the court, subject to cross-examination or tendered as prior statements. The court found that the outlines were not admissible evidence and thus could not be relied upon to establish a prima facie case of fraud. Furthermore, the court held that the respondents had not provided sufficient evidence to establish collusion among the witnesses, and therefore the application was dismissed.

The final orders of the court were that the respondents' interlocutory application dated 25 March 2022 was dismissed. The court noted that the issue of costs would be heard separately, given the applicant's submission that he wished to be heard on this topic in the event of this conclusion.