Civil Law

By Stefan Russell-Uren


The Trial of Ben Roberts-Smith

Unless you live in a cocoon, you will be aware Mr Ben Roberts-Smith, a decorated member of the Special Air Services Regiment (“the SASR”), has commenced proceedings against Fairfax media for defamation. Mr Roberts-Smith’s claim is premised on a series of articles concerning war-crimes and professional misconduct.

Defamation is a complex area of law, and it pays to summarise it before addressing the Roberts-Smith proceedings.

In general terms, defamation proceedings remedy damage to reputation. The action relies on the publication, whether orally or in writing, of matter which carries a defamatory imputation. An imputation is a fancy lawyer’s word for the meaning of a word or phrase. For example, if Person A says to Person B “don’t leave your wallet alone with Person C”, Person A has not actually said Person C is a thief, but that is what their words could mean.

To prove defamation, the imputation must damage a person’s reputation and bring them into public disrepute, odium, ridicule or contempt.

A claim for defamation can be defended. The best defence is usually truth. There are two ways to make out a defence. The Defendant (the person being sued) can prove the imputations raised by the Plaintiff (the person suing) are true. If the imputations raised by the Plaintiff are problematic, the Defendant can also contend the publication contains different imputations, and those are true. There are other defences, but these are the main defences relied upon in the Roberts-Smith litigation.

In around June 2018, the Age, the Canberra Times and the Sydney Morning Herald published articles co-authored by Chris Masters and Nick McKenzie about war crimes allegedly perpetrated by members of the SASR. Mr Masters is the only journalist to have been embedded in the SASR. Nick McKenzie is a prominent investigative journalist. Both have received Walkeys for their work.

Mr Roberts-Smith commenced the proceedings in August 2018, and claimed the publications gave rise to imputations he committed an act of domestic violence, authorised the execution of an unarmed Afghani civilian, bullied a colleague, and was so callous he murdered a man with a prosthetic leg, and took the leg back to Australia to use as a drinking vessel, amongst other things. These imputations, in essence, lead to a conclusion that Mr Roberts-Smith is undeserving of his reputation and is, in fact, a war criminal and a person worthy of odium and contempt.

Fairfax is defending the claim, in part, pleading the imputations are true. This approach allows Fairfax to put forward evidence of, for example, Mr Roberts-Smith’s use of the prosthetic leg as a drinking vessel and the circumstances in which various Afghanis were killed by Mr Roberts-Smith’s regiment. Fairfax is also contending Mr Roberts-Smith endangered the lives of his colleagues, seemingly, in an endeavour to satisfy his “blood lust”.

Fairfax has foreshadowed it will call many of his colleagues as witnesses.

Who knows what the Court will find and where the truth lies. Time will tell. What we do know is that Mr Roberts-Smith is in for a very long and arduous court battle.

Before a defamation action is brought, a good solicitor will carefully press a prospective litigant on their client’s potential exposure. If a defence of truth which involves highly damaging imputation has prospects of success, the commencement of proceedings must be considered cautiously. This must be explored very carefully with your solicitor.

We have run and settled successfully numerous defamation claims for clients. Some have even been run on a speculative basis (no win-no-fee).  Before commencing proceedings against defendants, we very carefully talk our clients through the process and discuss with them potential defences, to eliminate risks as best we can before any court action commences.

If you require advice in relation to a defamation matter, contact Aulich Civil Law.