Roberts-Smith v Fairfax Media Publications Pty Limited (No 33)

In the matter of Roberts-Smith v Fairfax Media Publications Pty Limited (No 33), the court was tasked with addressing an application to inspect, uplift, and copy certain documents. The dispute arose between the applicant, Ben Roberts-Smith, and the respondents, Fairfax Media Publications Pty Limited, regarding the inspection and potential disclosure of specific documents. The application was heard by the Federal Court, which had to determine whether there had been a waiver of legal professional privilege over certain communications and whether the documents were made in furtherance of a fraud.

The primary legal issues the court had to decide were whether the applicant had waived legal professional privilege by failing to object to, or cross-examine on, certain aspects of a witness's evidence and whether the documents were not protected by privilege because they were made in furtherance of a fraud. The respondents argued that the privilege was waived due to the applicant's failure to object to or challenge the evidence in cross-examination. They further submitted that the documents should be viewed as they may have been made in furtherance of a fraud. The court needed to assess these arguments in light of the applicable legal principles and the evidence presented.

The court held that the applicant had not waived privilege over the communications in question. It found that the respondents had not provided any authority to support the proposition that the documents should be viewed based on an allegation of fraud. Additionally, the court emphasised that the respondents had the onus of establishing a prima facie case of fraud, which they had not done. Consequently, the court concluded that the respondents had not met the threshold required to warrant inspection of the documents. For these reasons, the court dismissed the respondents' amended interlocutory application dated 8 April 2022. The court noted that it would hear the parties on the issue of costs.