Ben Roberts-Smith has been ordered to pay the legal costs of media outlets party to his failed defamation action over allegations he committed war crimes, the federal court heard on Tuesday.
Roberts-Smith had sued Nine 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.
Justice Anthony 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.
Justice Besanko rejected Roberts-Smith’s key argument that his conduct had not unnecessarily drawn out the proceedings - which ultimately heard more than 110 days of evidence over more than a year.
The judge found the former soldier knew from the commencement of the case that the allegations levelled against him in the articles - including of murder - were substantially true.
“The applicant’s (RS) submissions that he has not engaged in any conduct which has prolonged the proceedings fails to recognise the fundamental point that he knew from the commencement of the proceedings that the most serious imputations were substantially true,” Besanko said.
Roberts-Smith is appealing the decision to the full bench of the federal court, to be heard in February.
On Tuesday, Roberts-Smith was ordered by the court to pay the outlets’ legal costs assessed on an indemnity basis for the long-running defamation trial, which took 110 days to hear.
Estimates have pegged the cost for the opposing parties at exceeding $25m.
Nine-owned titles the Sydney Morning Herald and the Age, as well as the Canberra Times, reported allegations the SAS soldier was involved in the murders of four unarmed prisoners.
The publishers’ barrister, Nicholas Owens SC, told the court earlier this year Roberts-Smith sued to conceal the truth and would have succeeded in that pursuit had the newspapers failed to prove their claims.
“It must be the case, inevitably and necessarily, that the applicant commenced these proceedings and continued these proceedings knowing those imputations sued upon were in fact true,” he said.
The newspapers are also seeking a third-party costs order forcing the media magnate Kerry Stokes’ private company Australian Capital Equity (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.