them and what might have triggered a particular recollection. The applicant submits that that is "a missing piece" and this is relevant to the standard of proof and the presumption of innocence. The applicant submits that what the respondents were urging upon the Court without all of the material was "a pretty big call".
128 It is necessary to say something about the Inquiry conducted by the IGADF. In 2020, Colvin J described the background to the IGADF Inquiry in his reasons in Roberts-Smith v Fairfax Media Publications Pty Ltd (No 6) [2020] FCA 1285 (at [3]–[10]):
3 Before those events, in May 2016, at the request of the Chief of Army, the Inspector-General of the Australian Defence Force (IGADF) had commenced an inquiry to ascertain whether there is any substance to rumours and allegations of breaches of the Laws of Armed Conflict by elements of the Special Forces in Afghanistan (Inquiry). The Inquiry is ongoing and is being conducted by the Honourable Paul Brereton AM RFD, a Justice of the Court of Appeal of the Supreme Court of New South Wales who has been appointed to the statutory position of Assistant IGADF. It is being conducted under the provisions of the Inspector-General of the Australian Defence Force Regulation 2016 (Cth) (Regulation), having been established under a previous regulation.
4 When established, the Inquiry was required to be conducted in private. In the manner described below, the Inquiry has continued to be conducted in private. It has now reached a point where notices are being issued to persons who might be adversely affected by the Inquiry's findings and recommendations (described by the Inquiry as Potentially Affected Persons). A number of notices have been issued to Potentially Affected Persons that contain the details of potential findings or recommendations that the Inquiry is considering whether to make that may affect the individual person to whom the notice is addressed. In addition, each notice sets out relevant factual background and a summary of relevant evidence (PAP Notices).
5 On 3 July 2020, the respondents served a notice to produce in the defamation proceedings requiring production by Mr Roberts-Smith of the following documents:
1. Any notice received from the Inspector General of the Australian Defence Force (IGADF) indicating that the Applicant is a potentially affected person (PAP notice);
2. All documents accompanying the PAP notice; and
3. Any response by the Applicant to the PAP notice.
6 In addition, after being pressed by the respondents to discover documents concerning the Inquiry, Mr Roberts-Smith filed an amended list of discovered documents dated 13 July 2020. In the part of the list setting out the documents in respect of which privilege is claimed, the following description was stated at paragraph 67:
Documents to which the Inspector General of the Australian Defence Force Regulation 2016 applies.
