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Ben Roberts-Smith to appeal Australia’s biggest defamation case

Ben Roberts-Smith will appeal Australia’s biggest defamation case in the hopes of overturning a finding that he murdered four men.

user iconNaomi Neilson 25 August 2023 Big Law
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The Federal Court has heard two major updates this week in Mr Roberts-Smith’s ongoing fight against The Canberra Times, The Age, and The Sydney Morning Herald over articles that alleged he was responsible for unlawful killings and bullying in Afghanistan.

In addition to a February appeal – with the exact dates yet to be determined – the Federal Court’s Justice Anthony Besanko referred the Commonwealth’s application for a request for court documents and associated material be passed to another judge for hearing.

Commonwealth barrister Joe Edwards told the court at the end of June that they were seeking the material to allow the Office of the Special Investigator to build a criminal case.


Over the next fortnight, the court will also be asked to determine third-party costs and costs against Mr Roberts-Smith.

Justice Besanko dismissed Mr Robert-Smith’s case against the mastheads and journalists in June this year, having found that allegations the highly decorated soldier had unlawfully executed men – including machine-gunning one man – were “substantially true”.

Mr Roberts-Smith claimed much of Justice Besanko’s judgement relied on “unreliable” or “improbable” witness testimony.

He further claimed Justice Besanko “added to and cherry-picked” from evidence of one witness.

On Thursday, the parties agreed on February and determined that two court books would be appropriate to deal with material in open and closed courts, given the national security concerns.

Following the judgement, MinterEllison partner Peter Bartlett – who was behind the newspaper’s victory – said that in his 50 years of experience, he has “never seen a case like this”.

“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.