Disgraced soldier Ben Roberts-Smith ordered to pay Nine’s indemnity costs for proceedings

Ben Roberts-Smith will have to pay the legal costs of his opponents on an indemnity basis after a judge found he knew war crimes allegations made about him could be proven substantively true. 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. Justice Besanko on Tuesday ruled Mr Roberts-Smith will need to pay all of Nine Newspaper’s costs on an indemnity basis from the commencement of the proceedings. He found Mr Roberts-Smith knew there was enough evidence to “establish the substantial truth of the most serious imputations” during his case. “As the respondents put the matter, in my opinion correctly, the answer to the question of what a party, properly advised, ought to have appreciated must be based on an assumption as to the true facts known to the party,” Justice Besanko wrote in his judgment. “The applicant knew what had occurred at Whiskey 108, Darwan and Chinartu. “He knew that would be sufficient to establish the substantial truth of the most serious imputations and that that would be sufficient to lead the dismissal of the proceedings he brought.” 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. At the hearing over costs in September, Nine’s barrister Nicholas Owens SC, told the court Mr Roberts-Smith caused the proceedings to be “grossly prolonged” in 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” and referred to the fact Justice Besanko found the soldier and his witnesses told “various lies” to the court. But Mr Roberts-Smith’s lawyers argued he did not engage in any conduct which prolonged the proceedings. Arthur Moses SC, representing Mr Roberts-Smith, argued in September the “onus” of providing the defences lay with the newspapers. “And the onus was a heavy one,” he said. 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. Justice Besanko found Mr Roberts-Smith failed to “recognise the fundamental point that he knew from the commencement of the proceedings that the most serious imputations were substantially true,” Justice Besanko said in his judgment. Mr Owens also relied on further matters which established Mr Roberts-Smith’s conduct was “delinquent and unreasonable”, including his collusion with other witnesses, false evidence, findings concerning concealment of evidence and dissuading someone from giving evidence. Justice Besanko said a letter from Nine Newspapers to Mr Roberts-Smith on 11 June 2019 offering another settlement deal was “very favourable” and should have been accepted. But his failure to do so means he must now pay indemnity costs, Justice Besanko said in the judgment. Mr Roberts-Smith is appealing Justice Besanko’s decision to dismiss the proceedings, with a hearing in front of a full-court bench next year.