A costs decision in Ben Roberts-Smith’s defamation proceedings turned on whether he knew the imputations to be true, including his claim of ambiguity towards the murder of an old man and the execution of another man with a prosthetic leg.
Justices Nye Perram and Geoffrey Kennett of the Federal Court made a number of costs orders both for and against Ben Roberts-Smith, four months after the court’s unanimous decision to dismiss the former soldier’s appeal of his failed defamation proceedings.
It comes as the High Court refuses Roberts-Smith special leave to appeal, with costs.
In determining whether the costs should be awarded on an indemnity or lump-sum basis, Justices Perram and Kennett considered whether Roberts-Smith knew the imputations against him in The Sydney Morning Herald, The Age, and The Canberra Times were true.
They focused first on an imputation that Roberts-Smith pressured a newly deployed and inexperienced Special Air Service Regiment (SASR) officer to execute an elderly and unarmed Afghan man. The trial judge found the defence of substantial truth to be made out.
On appeal, Roberts-Smith argued the evidence for the murder was not sufficient to discharge the media’s burden of proof, and it did not follow findings that he knew the imputation to be true.
While that submission may hold water in some cases – such as where a doctor might have a sound but misguided belief in a risky procedure – the analysis was not open in Roberts-Smith’s matter.
“Ordering another soldier to execute an old man kneeling on the ground is not an ambiguous situation,” the bench said.
“So, too, we do not see how the finding that the appellant executed a man with the prosthetic leg with a burst of machine gun fire after frogmarching him to a place outside the compound is susceptible to any ambiguity which might make it plausible that the appellant did not know that what he was doing was murder.”
Having dismissed that part of Roberts-Smith’s submissions, Justice Perram and Kennett turned to whether his conduct during the appeal proceedings justified an order for indemnity costs.
The bench found it was “reasonably available” for Roberts-Smith to run the appeal, particularly because he did not pursue a case that he was innocent of the murders, but rather the evidence was not sufficient at trial to justify the conclusion that he was a murderer.
While his submissions about ambiguity were not accepted, the factual situations in each murder “were very complex and there were inconsistencies and anomalies in the evidence”, the judges added.
“There was therefore a proper basis for the appellant’s advisors to file the appeal and pursue their submissions … in the manner they did,” the judges said.
Given this finding, an application for indemnity costs was dismissed.
Roberts-Smtih then resisted the media parties’ application for a lump-sum costs order on the basis that the size of the appeal and submissions “did not demonstrate that there would be any particular difficulty or complexity in conducting a taxation of those costs”.
Justices Perram and Kennett did not agree, finding instead that the proceedings were “unusually complicated”.
“Much of the file is subject to non-publication orders of various kinds and some parts of the parties’ submissions and this court’s reasons are subject to national security restrictions,” they said.
“The taxation of the respondents’ costs will be a complex undertaking. The appeal presents as a clear one for assessment on a lump-sum basis.”
The parties were ordered to confer on the question of costs or return before a registrar to determine the lump-sum costs on the papers.
The case: Roberts-Smith v Fairfax Media Publications Pty Ltd (Costs) [2025] FCAFC 122.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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