The defamation action brought by former soldier Ben Roberts-Smith against three media outlets is starting to look like the probate case in Bleak House. In Charles Dickens’ novel, the case went on for so long that legal costs devoured the estate in question, rendering any verdict redundant.
The Roberts-Smith hearing returned to the Federal Court in Sydney this morning in front of Judge Anthony Besanko. Roberts-Smith filed proceedings way back in August 2018 and the court hearing commenced on June 7 last year. Thanks to COVID, the allied withdrawal from Afghanistan, and state border closures, only a handful of witnesses have given evidence in just a month of hearings.
The Victoria Cross winner has sued The Sydney Morning Herald, The Age and The Canberra Times over a series of reports which he says depicted him as a war criminal and a murderer. He has also taken issue with a story which said that he hit his then-mistress in the face, while they were attending an official function in Canberra. He denies all the allegations, and the newspapers are relying on the defence of truth.
With legal costs reaching millions of dollars and no end in sight to proceedings, most normal plaintiffs would have settled the action by now. But Roberts-Smith is no ordinary litigant. For one, much of his legal bill is being met by Perth billionaire Kerry Stokes.
Besanko told the court that both sides intended to call a total of about 24 witnesses, many of whom live in Western Australia. While WA maintains a hard border, the court has been forced to start the hearing with the non-WA witnesses.
At various times Besanko has pleaded with the parties to come to some sort of compromise, including examining witnesses by video link. At one point, it was seriously mooted that the entire trial could move to South Australia, which then had a soft border with WA. However, Roberts-Smith’s legal team has always refused, maintaining that the lawyers and the witnesses had to be in the same room.
This morning the parties were all in the same courtroom, with media and the public excluded due to COVID-related rules which came into effect in January.
The witnesses who have been examined were a handful of villagers from southern Afghanistan, who travelled to Kabul with their families at the end of July to give evidence just as the allied troops were withdrawing. They gave evidence via video link with a Pashtun interpreter.
Many witnesses on the current list are former members of Roberts-Smith’s former regiment, the SAS. These men (they are all men) cannot be identified and their appearances will require tight security.
The hearing continues.
