Ben Roberts-Smith VC, MG: the author of his own misfortune and a cautionary tale for defamation plaintiffs

By Hamish McNair

The judgment delivered in the Federal Court today by Justice Besanko is the latest instalment in an epic saga that has played out over nearly five years and 98 days of evidence, some of which was heard in closed court given the significant national security interests at play.

On the one hand, this decision is an overwhelming victory for public interest journalism and the media outlets involved. On the other hand, Australia’s most decorated living soldier has today been found by a Court, on the balance of probabilities, to have engaged in heinous conduct including the murder of unarmed civilians, authorising the assault of others and engaging in bullying of his fellow soldiers, including those under his command.

The reason a court was required to consider these issues was because Mr Roberts-Smith, with the assistance of highly competent legal advisors, voluntarily initiated these proceedings which were premised on the position that the allegations made against him were untrue and had thereby caused him unwarranted reputational harm.

As in any civil trial, the key determinant of this matter was not what happened in these various circumstances in Afghanistan and elsewhere between 2009 and 2012, but rather what is found by the court to have happened on the balance of probabilities. Critically, this is lower than the standard of proof applied in criminal matters which looks to whether a defendant has committed a crime beyond reasonable doubt.

An important distinction between a criminal matter concerning charges of murder and the defamation cases decided today is that Ben Roberts-Smith was not a defendant. He was a plaintiff who had brought the claim in reasonable anticipation that the media outlets would rely on the defences of truth and justification. Subject to the recent introduction of the statutory public interest defence, truth/justification and contextual truth are the primary defences available to publishers in these circumstances.

In one sense, this case stands alone as an example of mega-litigation involving one of Australia’s most prominent military figures and some of its largest media outlets. There are very few plaintiffs in modern society who have the time and resources to prosecute a claim such as this, and there are certainly examples of where prospective plaintiffs have been unlawfully defamed by the same media outlets and who, for their own reasons, have not taken the step of suing for defamation to seek vindication of their reputation.

The key lesson and cautionary tale which arises from today’s decision is that the law will permit reputational harm to be caused to a person in circumstances where the defamatory meanings conveyed by the relevant publication are found to be substantially true on the balance of probabilities. The truth will set someone free, but it won’t be the plaintiff.

If, as a prospective plaintiff, you cannot rebut a finding of substantial or contextual truth by the court, whether due to the absence of evidence or otherwise, you should not initiate an action for defamation. As shown today, to do so will only cause considerably more reputational harm, leaving you worse off reputationally and financially.

One cannot help but wonder what would have been the result had Mr Roberts-Smith not taken this action, or had he decided at any point to discontinue the proceedings of his own volition or by agreement with the media outlets. Mr Roberts-Smith may well have felt as if he couldn’t take a backward step having started on his journey for vindication. However, a rational party to litigation continually evaluates their situation. Pride comes before the fall.

Subject to any appeal by Mr Roberts-Smith, the cost consequences of today’s judgment will play out in due course, and – in any event – stood to dwarf the potential damages awarded to Mr Roberts-Smith had he won. Perhaps that was the clearest sign that this case had grown too large to yield any positive result for Mr Roberts-Smith.


Hamish McNair

Hamish is a commercial disputes lawyer, with expertise in urgent relief applications, defamation matters and defence of class actions.

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