Lawyers for Nine Newspapers say Ben Roberts-Smith caused his multimillion-dollar defamation trial to be “grossly prolonged”, as it was directed towards “concealing the truth” as the battle over the estimated $25m legal bill rolls on.
The decorated former soldier sued The Sydney Morning Herald, The Age and The Canberra Times over a series of articles published in 2018 that accused him of war crimes.
In June, Federal Court Justice Anthony Besanko dismissed the proceedings after finding the six articles proved – on the balance of probabilities – the most serious imputations.
After a marathon trial, it has been estimated that the legal bill for both sides will top $25m.
Mr Roberts-Smith’s lawyers told the court in June that the former soldier had agreed to pay the costs of the failed case on an indemnity basis from March 17, 2020 and argued he shouldn’t pay indemnity costs before this date.
Indemnity costs are ordered when the court considers one party should pay almost all the expenses of the proceedings because of the way the trial was conducted.
But Nicholas Owens SC, representing Nine Newspapers, on Monday told the court that Mr Roberts-Smith should pay the costs from August 2018 when he first sued.
Mr Owens argued that Mr Roberts-Smith had caused the proceedings to be “grossly prolonged” and a “classic definition of an abuse of process”.
“The applicant didn’t simply sit back and say ‘well, you prove these very serious allegations’, he gave a positive account himself,” Mr Owens said.
“He defended over a week of cross-examination, he called multiple witnesses over a period of almost two months, cross-examined our witnesses over a period of some months.”
Mr Owens said the soldier and his witnesses portrayed a “deliberate pattern of conduct … to both conceal relevant evidence and to propound false evidence”.
He made reference to Justice Besanko’s judgment, which found Mr Roberts-Smith and multiple witnesses told “various lies” to the court.
“(They) are specific instances of improper and unreasonable conduct of the litigation by the applicant and they provide their own basis for an indemnity costs order,” Mr Owens said.
Arthur Moses SC, representing Mr Roberts-Smith, argued the “onus” of providing the defences lay with the newspapers.
“And the onus was a heavy one,” he said.
He said Mr Roberts-Smith should only have to pay full costs if he prolonged the case with “groundless contentions”.
Mr Moses called into question the presumption of innocence, telling Justice Besanko the newspapers “persisted in running articles” where his client was portrayed as a war criminal.
The publication of the articles put Mr Roberts-Smith in an “impossible predicament”, Mr Moses argued, saying his client is entitled to the “presumption of innocence”.
“Now, he was required to either do nothing or to take some steps. He did commence these proceedings to protect his reputation and attempt to put a stop to the publication that he was a war criminal and a domestic violence offender,” Mr Moses said.
The soldier’s barrister told the court that the articles involving Mr Roberts-Smith were not “investigative journalism”, as they were already being investigated by the Inspector-General of the Australian Defence Force.
“The media were not entitled to go around publishing these articles in circumstances where he was entitled to that presumption of innocence,” Mr Moses said.
But Mr Owens said the presumption of innocence did not operate as some “overriding prohibition” on the publication of articles.
He said the argument could not be used as a justification for why Mr Roberts-Smith began the proceedings and told the court the newspapers deserved to be compensated for the full cost of litigation.
But if the court did not agree, Mr Owens argued that the newspapers should receive costs from June 2019 – when Mr Roberts-Smith rejected a “generous” settlement offer.
Justice Besanko reserved his decision on whether the court would make an indemnity order. He told the court he would endeavour to deliver it in the “near future”.
Mr Roberts-Smith is appealing Justice Besanko’s decision, with a hearing in front of a full-court bench next year.