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What it took to win Australia’s biggest defamation trial

Reflecting on 50 years of experience in defamation law, the lawyer behind the media’s success against Ben Roberts-Smith said not only was it the biggest defamation trial in Australia’s history, but it was also the most challenging. Here’s what he said it took to win.

user iconNaomi Neilson 20 June 2023 Big Law
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For a total of 110 days, Sydney’s Federal Court cleared out level 21 for an open court, a closed court, and meeting rooms where lawyers for Ben Roberts-Smith and mastheads The Age, The Sydney Morning Herald and the Canberra Times were working hard to win what would become Australia’s largest ever defamation case.

Over the entirety of the trial, there were 125 subpoenas, 63 notices to produce, 38 interim judgments, 26 affidavits and hundreds of witnesses for both the newspapers and Mr Roberts-Smith.

Behind the newspaper’s victory was MinterEllison, who had worked for The Age since 1863, and partner Peter Bartlett.


“I have seen many defamation cases during my career, and I’m familiar with a lot of defamation cases earlier.

“There has never been a case like this,” Mr Bartlett said.

In the firm’s Sydney and Melbourne offices, secure rooms were sanctioned off with Department of Defence safes, laptops, printers and briefcases, and all staff were required to have national security clearance. On top of the pandemic, it became difficult to navigate.

From pre-publication advice though to Justice Anthony Besanko’s judgment on 1 June, Mr Bartlett said he and the team at MinterEllison were constantly staring down the many challenges the trial threw at them and “beating Ben Roberts-Smith at his own game”.

“I’ve thought about this case a million times since, and even with the benefit of hindsight, I don’t believe we could have done more. I don’t believe we left a stone unturned. This was a huge, comprehensive, well-organised defence of a defamation case,” Mr Bartlett said.

Speaking to Lawyers Weekly just weeks before his 50th anniversary of working in media and defamation law, Mr Bartlett said this was the first case he has worked on that “threw up so many challenges”.

Mr Bartlett said the firm “had no idea how large it was going to be” and the team initially spent time contending with the huge amounts of resources Mr Roberts-Smith seemed to have at his disposal — thanks in large part to the support of Seven boss Kerry Stokes, he added.

The firm became “very reactive” to everything Mr Roberts-Smith and his army of lawyers had for them. Eventually, MinterEllison and its own team of barristers — including Nicholas Owens, Lyndelle Barnett and Chris Mitchell — could “match and counter the huge resources”.

Ben Roberts-Smith lost his defamation trial against Fairfax’s mastheads. Source: Department of Defence

Ben Roberts-Smith lost his defamation trial against Fairfax’s mastheads. Source: Department of Defence

Mr Bartlett said not only did they have to contend with the resources, but there were issues coming up “almost daily”. This included national security requirements through to ensuring all witnesses were prepared to give evidence — either interstate or from Afghanistan.

One of those major challenges involved Afghanistan witnesses who needed to make it from a small village to Kandahar and then into a lawyer’s office in Kabul so they could give remote evidence.

However, because Australia does not have an interpreter with the right qualifications in the required dialect, the next issue was in making sure someone from Canada, Toronto, could step in.

Then, “10 days later, Kabul fell to the Taliban”.

“We were lucky to get evidence before all of that,” Mr Bartlett said.

For the final victory, Mr Bartlett said he credits his strong team.

“This matter was huge in every possible way. It obviously went to a trial of 110 days. We were successful to the most extraordinary degree in the decision of Justice Besanko, and that was entirely due to a colossal team effort,” Mr Bartlett said.

Due to a health emergency, leading defamation barrister Sandy Dawson, then QC, had to withdraw from the newspaper’s legal team. He has since died from brain cancer.

Mr Bartlett said he compiled a list of 40 leading silks across the country and eventually narrowed this list down to Nicholas Owens, who had never worked a defamation case before.

“He was brilliant,” Mr Bartlett said.

“He had a wonderful reputation in cross-examination and getting right down into the details of the case, and this was clearly a complex case with very complex factual issues.”

The entire barrister team was just as brilliant, Mr Bartlett said, as were the 37 people he said he emailed when the newspapers won. He said all had their own roles and were instrumental to the success.

Mr Bartlett added Justice Besanko’s associate also “really stood out” during the trial because of his “incredibl[e] efficiency”.

“There were tens of thousands of documents, and a witness would be in the witness box and would be asked about some documents or photograph or diagram, and the associate would be able to immediately find them and physically hand them to the witness.

“It was really, really impressive,” Mr Bartlett said.

What this means for the future of media defamation cases

Mr Bartlett said defamation laws in Australia are “very biased” in favour of the plaintiffs, so to not only walk away from this matter with a win but to win on the grounds of truth was “remarkable”.

Mr Bartlett said he has no doubt that Mr Roberts-Smith had not expected some SAS soldiers, his wife and his private detective to give evidence against him, which was “very significant”.

“A combination of all those witnesses convinced Justice Besanko that nothing Ben Roberts-Smith would say in the witness box could be relied on. It was an amazing case,” Mr Bartlett said.

Mr Bartlett said the win “makes a huge difference” because a loss could have resulted in record damages, record costs and a major change in the way lawyers give media companies advice.

“They would have been far more conservative, and when they receive the letter of demand, I think they would be more likely to try and settle the complaint on a commercial basis, even though the complaint may not actually have a colossal amount of merit.

“To that degree, I think all media executives would have been very nervous about the legal cost exposure, and it would have made a huge difference to freedom of speech.”

Mr Bartlett said media were becoming “very concerned” about winning a defamation case, “and now they have more confidence”.

“Hopefully, it also means that those people contemplating suing for defamation that have fairly weak claims will be a little more hesitant in suing, so hopefully, it will result in fewer defamation cases.”

MinterEllison’s team of lawyers

Mr Bartlett said he credited the win entirely to his team. They include:

Anna Gunning-Stevenson

Annabelle Ritchie

Anneliese  Cooper

Dean Levitan

Dougal Hurley

Dylan Dexter

Ersen Ahmet

Eugenie Song

Heidi Knights

Jeremy Forbes

Megan Arends

Peter Tryfonopoulos

Tess McGuire

Wendy Mansell

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