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Appeal, special investigator concerns remain in Ben Roberts-Smith defamation case

There are still several strings left to tie up Australia’s biggest defamation case, including Ben Roberts-Smith’s potential appeal, a costs issue and whether a special investigator should receive material.

user iconNaomi Neilson 30 June 2023 Big Law
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When the defamation matter that found in favour of The Sydney Morning Herald, The Age and the Canberra Times returned to the Federal Court on Thursday (29 June), lawyers for Mr Roberts-Smith said he has accepted he should pay legal costs on an indemnity basis.

However, Nine’s counsel Nicholas Owens said there is a dispute about whether costs should be paid prior to 17 March 2020.

During the hearing, Nine said it is also seeking a costs order against the Seven Network and Kerry Stokes’ private company, Australian Capital Equity, for loan agreements with Mr Roberts-Smith.


Subpoenas for records of attendance by lawyers for the companies have been requested, but Seven counsel Justin Williams said there was “nothing surprising or inappropriate” in representatives attending proceeding, and it could not support a third-party costs order.

As part of the final steps, Commonwealth barrister Joe Edwards told the court there was a proposal to allow the Office of the Special Investigator charged to Mr Roberts-Smith to access court material subjected to redactions for national security purposes.

While he said there is “nothing unusual” about the office using this information for the purpose of building a criminal case, the application is different because of the national security element.

Also, during Thursday’s matter, Mr Roberts-Smith’s barrister Arthur Moses SC requested the matter return after 12 July as they have until then to file an appeal. He said this is being “looked at”.

The night prior to the Federal Court appearance, the International Bar Association issued a statement commending the court’s ruling and said it came at a time when “globally, respect for the right to freedom of expression and media freedom are in a state of decline”.

Co-chair Anne Ramberg Dr Jur hc said it is imperative journalists continue to “shine a light on the activities of their governments and armed forces” and IBAHR stands with those “who dare to seek and report the truth in an incredibly hostile and dangerous environment”.

Co-chair Mark Stephens CBE also congratulated MinterEllison partner and former IBA chair of the legal practice division Peter Bartlett for his “extraordinary effort in defence of his clients”.

Speaking to Lawyers Weekly after the judgment was handed down, Mr Bartlett credited his team for the win.

“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.

The matter is expected to return in September.