Ben Roberts-Smith has been ordered to pay close to $1m as security into a court bank account, in order to be able to continue his appeal against his lost defamation case.
The former SAS corporal, Australia’s most decorated living soldier, has been instructed to pay $910,000 to cover the legal costs of the three newspapers he has sued for defamation, in the event he loses his appeal.
In June in the federal court in Sydney, justice Anthony Besanko dismissed in its entirety Roberts-Smith’s multimillion-dollar defamation action against the Age, the Sydney Morning Herald, and the Canberra Times.
Roberts-Smith had sued the newspapers for defamation over a series of 2018 articles he alleged falsely portrayed him as a criminal who “broke the moral and legal rules of military engagement” and “disgraced” his country and its army.
He denied all wrongdoing and said the allegations against him were motivated by spite and jealousy.
Besanko, however, found the newspapers had proven to a civil standard – on the balance of probabilities – that Roberts-Smith was complicit in the murder of four unarmed prisoners while serving in Afghanistan, including kicking a handcuffed man, a father of six named Ali Jan, off a cliff before ordering him shot dead.
Roberts-Smith is appealing that decision to the full bench of the federal court, to be heard in February.
But, in order to continue that appeal, Roberts-Smith has been ordered to pay a security, to cover the newspapers’ legal costs, in the event that he loses.
Justice Nye Perram published orders instructing Roberts-Smith to pay $910,000 – in tranches of $300,000, $300,000 and $310,000 into a court bank account. The first tranche has been paid already, the two subsequent fall due in December and January.
Additionally, there remains an ongoing dispute over costs for the original defamation action, which spanned more than a year and heard 110 days of evidence, at an estimated combined cost of up to $35m.
Roberts-Smith’s lawsuit was initially funded by his then employer, the Seven Network, before the loan was taken over by the private company of Seven West Media chairman Kerry Stokes, Australian Capital Equity (ACE).
Roberts-Smith has agreed to pay legal costs on an indemnity basis from March 2020 onwards, when the newspapers made a second offer to settle the case. But the newspapers are seeking costs for the entirety of the proceedings.
The newspapers are also seeking a third-party costs order forcing ACE and Seven to bear the costs of the defamation action, arguing the two companies were intimately involved in directing Roberts-Smith’s legal action.
Roberts-Smith’s loan agreement with ACE states that “the Seven Network’s legal team’s continued oversight and management of the defamation proceedings and inquiry is important for a successful outcome”.
Seven and ACE are fighting the third-party costs order. But the newspapers have sought access to correspondence from within the Roberts-Smith camp: the court has heard previously that a search of Seven’s email logs revealed more than 8,600 emails between Seven’s commercial director Bruce McWilliam and Roberts-Smith’s lawyers over the five years of the case.
Roberts-Smith resigned from Seven on 2 June, the day after the judge’s decision in the defamation trial.
Roberts-Smith has not been criminally charged over his actions in Afghanistan, but remains the subject of an active investigation by the government’s Office of the Special Investigator, established to investigate allegations of war crimes by Australian soldiers in Afghanistan.
