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A Federal Court judge has ordered disgraced former SAS corporal Ben Roberts-Smith to pay a greater proportion of the legal costs incurred by The Age and The Sydney Morning Herald in his marathon defamation case against the mastheads.
Roberts-Smith previously accepted he was liable for the millions of dollars in legal costs accumulated in the war crimes case after the date of a settlement offer he rejected on March 18, 2020. The media companies had made another offer in June 2019, which Roberts-Smith also rejected.
Ben Roberts-Smith outside the Federal Court of Australia.Credit: Getty
On Tuesday, Justice Anthony Besanko ruled that Roberts-Smith should also bear the costs of the litigation from August 2018 – when he launched the case – leaving him liable for up to an additional $1 million in legal costs payable to Nine Entertainment Co, the owner of this masthead.
Besanko rejected Roberts-Smith’s argument that his conduct had not drawn out proceedings, finding that he knew from the commencement of the case that the allegations made by journalists Chris Masters and Nick McKenzie were substantially true.
“[Robert-Smith’s] submissions that he has not engaged in any conduct which has prolonged the proceedings fails to recognise the fundamental point that he knew from the commencement of the proceedings that the most serious imputations were substantially true,” he said.
“The applicant knew what had occurred at W108, Darwan and Chinartu.
“He knew that that would be sufficient to establish the substantial truth of the most serious imputations and that that would be sufficient to lead to the dismissal of the proceedings he brought.”
Besanko found this year that the newspapers had proven to the civil standard – on the balance of probabilities – that Roberts-Smith was a war criminal who was complicit in the murder of four unarmed prisoners in Afghanistan.
He also found the news outlets had proven the former Special Air Service corporal had bullied a fellow soldier.
Roberts-Smith denies all wrongdoing and is appealing against the decision. The full court of the Federal Court will hear his appeal in February.
Ben Roberts-Smith.
The total cost of the case is estimated at $25 million.
It remains to be determined, however, whether Roberts-Smith will bear the costs himself, or whether the bill will be paid by Seven West Media, his former employer and key backer, from whom the media companies are seeking third-party costs.
Roberts-Smith’s employer at the time funded his lawsuit under a loan agreement from 2018, before Seven West Media chairman Kerry Stokes’ private company, Australian Capital Equity, took over the loan on June 24, 2020, and paid out his existing debt to Seven.
A standard costs order against a losing party entitles the winner of litigation to claw back about 50 per cent of costs.
An indemnity order, such as the one made against Roberts-Smith, allows the prevailing party to claim between 80 and 90 per cent of the legal costs.
In October, Roberts-Smith was ordered to pay almost $1 million to the court to cover the legal costs of the publishers in the event he loses his appeal against his defamation loss.
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