Roberts-Smith v Fairfax Media Publications Pty Limited (No 42)

This was not the main defamation trial. It was a later procedural dispute about subpoenas issued after the respondents had successfully defended Ben Roberts-Smith's defamation proceedings.

Once the defamation claims were dismissed, the respondents sought their costs. They also sought costs orders against two non-parties, SNOL and ACE. Their case was that those companies had funded Mr Roberts-Smith's litigation and may have played a role in its conduct that was relevant to whether a third-party costs order should be made.

To investigate that issue, the respondents issued subpoenas to SNOL, ACE, Herbert Smith Freehills and Addisons. The recipients then asked the Court to set the subpoenas aside, arguing that the documents sought could not affect the determination of the proposed third-party costs application.

That made this a practical fight about the boundary between legitimate evidence gathering and overreach. The Court had to decide whether the subpoenas were properly connected to a live issue, whether they should be narrowed, and how privilege concerns should be handled.

The subpoenas were not framed as a demand for every internal file. They targeted particular categories of documents that might reveal the extent of SNOL's and ACE's involvement in the proceedings.

For SNOL and ACE, the subpoenas sought invoices containing records related to attendance at court by lawyers observing the hearing on behalf of the company, and records of correspondence with lawyers or advice given in relation to the proceedings, while excluding the content of that correspondence or advice. For Herbert Smith Freehills and Addisons, the subpoenas sought costs disclosures, costs agreements, time entries, invoices, and records of correspondence or advice relating to work done for SNOL and or ACE in connection with the proceedings.

The respondents' theory was straightforward. If the documents showed regular monitoring, repeated communications, or a more active role in oversight and management, that material might help establish the degree to which SNOL or ACE stood behind the litigation. The respondents also relied on the funding documents themselves, especially the ACE letter's reference to the continued oversight and management of the proceedings by SNOL's legal team.

The Court noted that the respondents were not seeking some categories of material. In particular, there was no dispute that documents relating to advice about foreshadowed third-party costs applications and advice concerning earlier subpoenas were outside the respondents' request. During argument, the respondents also indicated they were not seeking documents relating to advice to SNOL about news broadcasting issues concerning the proceedings.

The immediate issue was whether the subpoenas should be set aside under rule 24.15 of the Federal Court Rules 2011, in whole or in part. The recipients argued that the subpoenas lacked a legitimate forensic purpose because the documents sought could not affect the determination of the proposed third-party costs application.

Justice Besanko restated the established principles. A subpoena may be set aside if it is oppressive, an abuse of process, or lacks a legitimate forensic purpose. The issuing party does not need to prove that the documents will definitely advance its case. It is enough if the documents could possibly throw light on the issues, or if it is on the cards that they may do so.

The background issue was the respondents' proposed application for costs against non-parties. The judgment referred to authorities recognising that courts can, in appropriate circumstances, order a non-party to pay costs. The factors mentioned in the reasons included whether the non-party funded the litigation, played an active part in it, had a substantial interest in it, caused the proceedings to be pursued, or stood behind a party who was effectively a person of straw.

That context mattered because the subpoena question was not whether SNOL and ACE would ultimately lose the costs application. It was whether the requested documents might assist the Court in understanding the part they played in the litigation.

The Court did not accept the broad submission that the subpoenas should be set aside altogether. Instead, Justice Besanko held that the subpoenas should be confined in certain respects and, once so confined, they did reveal a legitimate forensic purpose.

The Court accepted three specific exclusions. First, documents relating to compliance with subpoenas previously issued in the proceedings were to be excluded. Secondly, documents relating to specified correspondence about foreshadowed third-party costs applications were to be excluded. Thirdly, documents relating to advice to SNOL about issues concerning news broadcasting relating to the proceedings were to be excluded.

Subject to those limits, the Court held that the subpoenas were valid. His Honour said the flaw in the challenge was that it set the relevance threshold too high. The part played in the litigation by SNOL and ACE was undoubtedly relevant to the proposed third-party costs application, even if it was only one factor among several. Direct instructions about the conduct of the litigation might be the strongest evidence of active involvement, but other forms or degrees of involvement could still be relevant.

The Court also rejected the proposed time-based limits. SNOL and ACE had argued that the subpoenas should be split by funding period, with SNOL's documents ending on 23 June 2020 and ACE's beginning on 24 June 2020, and that documents after the end of the trial should be excluded. The judgment records that the Court rejected both suggested limitations, accepting the respondents' submission that there was no clear line between the periods, particularly given the ACE letter's reference to the continued oversight and management by SNOL's legal team.

The formal order recorded in the reasons was that the parties be heard as to the appropriate order in light of the reasons. So the judgment gives the Court's reasoning on validity and scope, while indicating that final orders were to be settled after hearing from the parties.

SNOL made a specific argument about legal professional privilege. It said that if a document comprising communications between SNOL and its lawyers was created for the dominant purpose of legal advice, the whole document would be privileged. On that basis, SNOL argued it should not be forced to produce a document and simply mask the substantive content.

The Court did not finally determine that issue in the abstract. Justice Besanko said privilege was a matter to be determined if and when a claim of privilege was made. That is an important practical point. A subpoena challenge and a privilege dispute are related, but they are not the same thing.

For businesses, this means a subpoena may survive even though some documents are later withheld or redacted on proper privilege grounds. It also means businesses should expect privilege to be assessed document by document, not assumed across an entire category without careful analysis.

Good document management matters here. If legal advice, commercial updates, governance approvals and media or reputation discussions are all mixed together, responding to a subpoena becomes slower, more expensive and more contentious. Clear file structures, disciplined communications and careful recording of who is acting for whom can make a major difference if a subpoena arrives.

The commercial message is not that businesses should never support a connected person in litigation. It is that support should be structured carefully, with a clear understanding of what role the business is and is not taking.

In this case, the Court was prepared to allow subpoenas aimed at testing the extent of a funder's involvement. The funding documents mattered. So did the possibility that lawyers for the funder attended court, communicated about the proceedings, or had some oversight role. The ACE arrangement also included an entitlement to an additional payment if the court actions were successful, which was part of the factual picture before the Court.

That does not mean every lender, employer or related company will face a non-party costs order. The judgment simply shows that these facts can be relevant enough to justify document production. The threshold for obtaining documents is lower than the threshold for ultimately proving that a non-party should pay costs.

If your business is considering funding litigation for an employee, founder, executive or related party, think about the arrangement in advance. Is the business only providing finance, or does it expect reporting, oversight, approval rights or a share in any recovery? Who can communicate with the litigant's lawyers? Who attends hearings? What records will exist if the other side later alleges the business was the real driver of the case?

Businesses should also be realistic about litigation optics. A company may have legitimate reasons to monitor a high-profile case involving a senior executive or reputational issues. But if the documents show close and sustained involvement, that may be enough to justify subpoenas and further scrutiny. The safest approach is to define roles clearly, document the commercial rationale, and obtain legal advice early if the arrangement goes beyond simple financial support.

The judgment was delivered on 5 July 2023 by Besanko J in the Federal Court of Australia. It followed the dismissal of the underlying defamation proceedings on 1 June 2023.

The reasons record that the parties were to be heard as to the appropriate order in light of the Court's reasons. This page therefore focuses on the Court's reasoning about the subpoenas, the accepted exclusions, the rejection of the broader challenge, and the practical implications for businesses that fund or monitor litigation involving others.

This case should be read as a costs and civil procedure decision, not as a franchising or distribution authority.