220 The second argument is as follows. It is said by the applicant that through the evidence of Person 41, the respondents now seek to maintain a case in which the applicant, not Person 5, ordered Person 4 to shoot EKIA56. That case is, the applicant submits, an impermissible departure from the Particulars being the pleaded case. I note that no objection on this basis was taken by the applicant at the time Person 41 gave his evidence.
221 The applicant has had proper notice that the respondents advance a case in accordance with Person 41's evidence. In Roberts-Smith v Fairfax Media Publications Pty Limited (No 12) [2021] FCA 465 (Roberts-Smith (No 12)) (published with redactions on 6 May 2021), I considered an application by the respondents for leave to issue Subpoenas to give evidence to Persons 24, 40, 41, 42, 43 and 56. No outlines of evidence had been filed in relation to those persons, but there was in each case, except for Person 56, what I considered to be a sufficient equivalent. I granted leave in the case of each person, except for Person 56. I said (at [52]):
The applicant's principal objection to the application in relation to Persons 24, 40, 41, 42 and 43 is that their evidence is inconsistent with the pleading of the incident in the existing Particulars of Truth. I do not propose to go through the details of what the applicant said were inconsistencies, other than to address the applicant's best example. In (46) of the existing Particulars of Truth, the respondents allege that in the presence of the applicant, Person 5 ordered Person 4 to execute Afghan Male 1, No doubt this is a significant difference on an important topic. However, inconsistency per se is not a reason to refuse the application. It might be if it is such as to raise a new case, but I do not consider that any inconsistencies (if, and to the extent, there are inconsistencies) rise to that level. I grant the application with respect to Persons 24, 40, 41, 42 and 43.
There was no appeal from that decision. An unredacted copy of this paragraph is set out in the closed Court reasons (at [1]).
222 I am also informed by the respondents, without contradiction by the applicant, that they wrote to the applicant on 6 June 2021 stating that, for the avoidance of doubt, they relied on the evidence that the parties could anticipate would be given by Person 41. In the circumstances, I do not consider that there has been an impermissible departure or that there is any unfairness to the applicant in considering the case the respondents now advance.
Approach and Witnesses
223 In undertaking the fact-finding exercise, I must bear in mind the matters in Section 1 of this Part.
