# Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA)/Part 1

​BESANKO J:
PART 1 — INTRODUCTION
1 There are three proceedings before the Court. They have been heard together.
2 The applicant in each proceeding is Mr Ben Roberts-Smith VC MG. He was a member of the Special Air Service Regiment (SASR) between 2003 and 2013. During that period, he undertook six tours of Afghanistan. He has received a number of awards and medals, including the Medal for Gallantry in 2006, the Victoria Cross in 2011 and a Commendation for Distinguished Service in 2014.
3 The respondents in the first proceeding (NSD 1485 of 2018) are Fairfax Media Publications Pty Limited (Fairfax Media), Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe. The respondents in the second proceeding (NSD 1486 of 2018) are The Age Company Pty Limited (The Age), Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe. The respondents in the third proceeding (NSD 1487 of 2018) are The Federal Capital Press of Australia Pty Limited (Federal Capital Press), Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe. It is not in dispute in each proceeding that at the relevant time, the second, third and fourth respondents were journalists employed or engaged by the first respondent. Fairfax Media is the publisher of The Sydney Morning Herald (SMH) and Sun Herald newspapers and of articles ​which appear on the SMH website. The Age is the publisher of The Age and Sunday Age newspapers and of articles which appear on The Age website. The Federal Capital Press is the publisher of The Sunday Canberra Times newspaper and of articles which appear on The Canberra Times website. The three proceedings relate to articles published in both the newspapers and on the websites in June and August 2018. The proceedings against each of Fairfax Media and The Age involves six articles and the proceedings against the Federal Capital Press involves four articles.
4 Each of the respondents published articles on or about 9 June 2018. Fairfax Media and the second and third respondents published articles in the SMH newspaper on 9 June 2018 entitled "SAS's Day of Shame" and "Troops kept 'kill board': SAS's Day of Shame". They published an article on the SMH website on 8 June 2018 entitled "Abdul's brother went out to buy flour. He never came home". The Age and the second and third respondents published an article in The Age newspaper on 9 June 2018 entitled "SAS's Day of Shame" and "Did the SAS kick a cuffed man off cliff?" They published an article on The Age website on 8 June 2018 entitled "Abdul's brother went out to buy flour. He never came home". The Federal Capital Press and the second and third respondents published an article on The Canberra Times website on 8 June 2018 entitled "Abdul's brother went out to buy flour. He never came home". These articles referred to a soldier known as "Leonidas" and contained allegations that an Afghan detainee was kicked off a cliff by Leonidas and subsequently executed. The articles have different headlines and some distinct sections, but they are substantially similar. It is convenient to refer to these articles as the "Group 1 articles".
5 On 10 June 2018, Fairfax Media and the second and third respondents published an article in The Sun Herald newspaper entitled "Special forces rookie 'blooded' by executing an unarmed man". They also published an article on the SMH website on 9 June 2018 entitled "Special forces rookie 'blooded' by executing an unarmed man". On 10 June 2018, The Age and the second and third respondents published an article in The Sunday Age newspaper entitled "Blood Ties". They also published an article on The Age website on 9 June 2018 entitled "Special forces rookie 'blooded' by executing unarmed man". The Federal Capital Press and the second and third respondents published two articles on 10 June 2018. They published an article in The Sunday Canberra Times newspaper on 10 June 2018 entitled "S.A.S. rookie told to shoot unarmed man". They also published an article on The Canberra Times website on 10 June 2018 entitled "Special forces rookie 'blooded' by executing an unarmed man". These articles also referred to a soldier known as "Leonidas" and contained a number of allegations, ​including an allegation concerning the execution of an elderly, unarmed Afghan in circumstances in which a "rookie" was "blooded". The articles also referred to another killing involving a prisoner with a prosthetic leg and repeated the allegation that a prisoner had been kicked off a cliff. Again, the articles have different headlines and some distinct sections, but they are substantially similar. It is convenient to refer to these articles as the "Group 2 articles".
6 On 11 August 2018, Fairfax Media and the second, third and fourth respondents published an article in the SMH newspaper entitled "War hero fires back over abuse claims" and "Beneath the bravery of our most decorated soldier". They also published an article on the SMH website on 10 August 2018 entitled "Beneath the bravery of our most decorated soldier". On 11 August 2018, The Age and the second, third and fourth respondents published an article in The Age newspaper entitled "The cracks in a war hero's façade", "Beneath the bravery" and "Beneath lauded soldier's bravery". They also published an article on The Age website on 10 August 2018 entitled "Beneath the bravery of our most decorated soldier". The Federal Capital Press and the second, third and fourth respondents published an article on 10 August 2018 on The Canberra Times website entitled "Beneath the bravery of our most decorated soldier". These articles refer to the applicant by name and contain a number of allegations concerning his conduct as a soldier in Afghanistan and an allegation of domestic violence. The articles have different headlines and some distinct sections, but they are substantially similar. It is convenient to refer to these articles as the "Group 3 articles".
7 It is not suggested that there is any substantial difference between the articles which comprise the Group 1 articles or between the articles which comprise the Group 2 articles or between the articles which comprise the Group 3 articles. In those circumstances, the articles published by Fairfax Media and the other respondents in the first proceeding may be used as representative of the articles which are the subject of the other two proceedings. I annex to these reasons the Group 1 (Annexures A and B), Group 2 (Annexures C and D) and Group 3 (Annexures E and F) articles in the proceeding involving Fairfax Media and in each case, I include a schedule prepared by the applicant's solicitors which enables the reader to identify by number particular passages in the articles.
8 There was no dispute about the publication of the articles. The applicant administered interrogatories addressed to the extent of publication of the articles and the answers to those interrogatories were tendered by the applicant at the trial.
​9 By the end of the trial, there was no dispute about the identification of the applicant in the Group 1 and Group 2 articles. The respondents admit that the applicant has adduced evidence which establishes that at least one person read each of the articles comprising the Group 1 and Group 2 articles and, on the basis of extrinsic facts, understood those articles to refer to the applicant. The respondents do not dispute that such identification was reasonable. In addition, there is evidence adduced by the applicant of readers identifying him as being the subject of the Group 1 and Group 2 articles.
10 There is a dispute between the parties concerning some of the imputations said to be conveyed or communicated by the articles. In each case, the applicant relies on the natural and ordinary meaning of the matters complained of.
11 The applicant alleges that the following defamatory imputations of and concerning him were conveyed or communicated by the Group 1 articles:
    (1) The applicant while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him (Imputation 1).
    (2) The applicant broke the moral and legal rules of military engagement and is therefore a criminal (Imputation 2).
    (3) The applicant disgraced his country Australia and the Australian army by his conduct as a member of the SASR in Afghanistan (Imputation 3).
The respondents do not dispute that these imputations were conveyed or communicated by the Group 1 articles.
12 The applicant alleges that the following defamatory imputations of and concerning him were conveyed or communicated by the Group 2 articles:
    (1) The applicant while a member of the SASR, committed murder by pressuring a newly deployed and inexperienced SASR soldier to execute an elderly, unarmed Afghan in order to "blood the rookie" (Imputation 4).
    (2) The applicant while a member of the SASR, committed murder by machine gunning a man with a prosthetic leg (Imputation 5).
    (3) The applicant while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him (Imputation 1).
    (4) The applicant having committed murder by machine gunning a man in Afghanistan with a prosthetic leg, is so callous and inhumane that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel (Imputation 6).
The respondents do not dispute that Imputation 1 was conveyed or communicated by the Group 2 articles. They dispute on various grounds that Imputations 4, 5 and 6 were conveyed or communicated by the Group 2 articles.
13 The applicant alleges that the following defamatory imputations of and concerning him were conveyed or communicated by the Group 3 articles:
    (1) The applicant committed an act of domestic violence against a woman in the Hotel Realm in Canberra (Imputation 7).
    (2) The applicant is a hypocrite who publicly supported Rosie Batty, a domestic violence campaigner, when in private he abused a woman (Imputation 8).
    (3) The applicant as deputy commander of a 2009 SASR patrol, authorised the execution of an unarmed Afghan by a junior trooper in his patrol (Imputation 9).
    (4) The applicant during the course of his 2010 deployment to Afghanistan, bashed an unarmed Afghan in the face with his fists and in the stomach with his knee and in so doing alarmed two patrol commanders to the extent that they ordered him to back off (Imputation 10).
    (5) The applicant as patrol commander in 2012 authorised the assault of an unarmed Afghan, who was being held in custody and posed no threat (Imputation 11).
    (6) The applicant engaged in a campaign of bullying against a small and quiet soldier called Trooper M which included threats of violence (Imputation 12).
    (7) The applicant threatened to report Trooper J to the International Criminal Court for firing at civilians, unless he provided an account of a friendly fire incident that was consistent with the applicant's (Imputation 13).
    (8) The applicant assaulted an unarmed Afghan in 2012 (Imputation 14).
The respondents dispute that any of these imputations were conveyed or communicated by the Group 3 articles.
14 The applicant's case is that the imputations conveyed by the articles are of the most serious kind and that he is entitled to a substantial award of damages in each of the three proceedings. ​In addition, he claims aggravated damages and he claims that the circumstances of aggravation mean that the statutory cap or limit on damages for non-economic loss imposed by s 35 of the Defamation Act 2005 (NSW) does not apply. In addition, the applicant seeks a substantial award of damages for economic loss or loss of earning capacity.
15 The applicant also claims in each proceeding a permanent injunction restraining publication by the respondents of such defamatory imputations as are found by the Court, an order requiring the removal from the websites of any of the matters complained of which remain thereon, interest and costs.
16 The defences in each proceeding are similar. They are justification or substantial truth (s 25 of the Defamation Act) and contextual truth (s 26 of the Defamation Act). In the alternative, the respondents plead a number of matters said to mitigate damages. In the further alternative, the respondents sought to invoke, by reason of the circumstances they identified, the principle that the Court is entitled to have regard to all the evidence before it and that if that evidence establishes that the applicant in the proceeding has deceived the Court and has engaged in misconduct then, in those circumstances, even if the respondents' defences fail, the applicant should be awarded only nominal damages (Joseph v Spiller [2012] EWHC 2958 (QB); Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29; Gatley C, Parkes R and Busuttil G, Gatley on Libel and Slander (13th ed, Thomson Reuters, 2022) at para 10–005). As will become clear, it is not necessary for me to address this submission.
17 Before proceeding to the next Part of these reasons, the following should be noted.
18 These proceedings were commenced in August 2018. On 31 March 2020, the Attorney-General for the Commonwealth gave a notice in writing to the parties to the proceedings, the legal representatives of the parties to the proceedings and the Court to the effect that the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (the NSI Act) applied to these proceedings. On 15 July 2020, I made orders under s 38B and s 19(3A) of the NSI Act. Section 38B is in the following terms:
   (1) At any time during a civil proceeding:
       (a) the Attorney-General, on the Commonwealth's behalf; and
       (b) the parties to the proceeding, or their legal representatives on their behalf;
   may agree to an arrangement about the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information.
   ​(2) The Court may make such order (if any) as it considers appropriate to give effect to the arrangements (see also s 38D).
19 Section 19(3A) of the NSI Act is in the following terms:
   In addition to the powers of a court under this Act in a civil proceeding, the court may make such orders as the court considers appropriate in relation to the disclosure, protection, storage, handling or destruction, in the proceedings, of national security information if:
   (a) the court is satisfied that it is in the interest of national security to make such orders; and
   (b) the orders are not inconsistent with this Act; and
   (c) the orders are not inconsistent with regulations made under this Act.
20 A number of orders were made and those orders have been amended from time to time.
21 The sections to which I have referred contain a reference to national security information which is defined in s 7 of the NSI Act as information that relates to national security or the disclosure of which may affect national security. National security means Australia's defence, security, international relations or law enforcement interests (see s 8).
22 The orders made by the Court are based on the following key concepts:
    (1) identifying information which means any information which identifies, or tends to identify, a special operations command member;
    (2) national security information which is defined by reference to the NSI Act;
    (3) NPO information which means information contained in an NPO document. "NPO" means a non-publication order and an NPO document is a document which is identified in the orders or the process adopted thereunder;
    (4) a Sensitive Court Document and a Sensitive Court File;
    (5) a Sensitive Document and Sensitive Information which is information contained in a Sensitive Document; and
    (6) a Sensitive IGADF Document and Sensitive IGADF Information.
23 The orders had the effect that evidence was given in both open Court and closed Court. There is open Court transcript and closed Court transcript and redacted closed Court transcript. This third category consists of closed Court transcript which the Commonwealth has had the opportunity to consider as suitable for release to the public.
​24 Even in the case of hearings in open Court, Sensitive Witnesses gave evidence in a way in which they could be seen and heard by each person who is an Authorised Person, a Sensitive Witness or a Sensitive Witness Representative who represents the Sensitive Witness giving evidence who is present in the courtroom as defined in the orders, but the Sensitive Witness may be heard, but not seen by any person who is not an Authorised Person, a Sensitive Witness or a Sensitive Witness Representative who represents the Sensitive Witness giving evidence. "Sensitive Witness" is defined as a special operations command member who a party proposes to call as a witness in the proceedings, or a person who the Commonwealth notifies the parties and the Court in writing is a Sensitive Witness. There was an exclusion clause in relation to Mr Andrew Hastie MP.
25 The closed Court arrangements applied in the case of Sensitive Documents as defined in the orders. A party representative or Commonwealth representative was prohibited by the orders from tendering or otherwise asking the Court to receive a Sensitive Document unless the Court was closed. There was also a prohibition on an Authorised Person communicating or causing or inviting a Sensitive Witness or any other person to communicate identifying information unless the Court is closed and a prohibition on a party representative or Commonwealth representative tendering or otherwise asking the Court to receive a document which contains identifying information unless the Court is closed. There are other prohibitions relating to communications of other national security information and tendering of documents containing national security information.
26 The effect of these orders made under the NSI Act is that Sensitive Documents were dealt with in closed Court. The effect of that, in turn, is that certain matters have been dealt with in closed Court submissions and now in closed Court reasons. I will be publishing closed Court reasons. I can indicate that those reasons address in some detail aspects of the closed Court evidence relevant to the missions to Whiskey 108, Darwan and Chinartu. There is a fairly short reference to the mission to Fasil. There are very short references to the bullying of Person 1, the alleged unlawful assaults on PUCs (persons under control or confinement) and the intimidation of witnesses, collusion and contamination of witnesses, concealment of relevant evidence and material and lies and the alleged separation of the applicant and Ms Roberts.
27 I turn now to the dispute between the parties concerning the imputations conveyed or communicated by the articles.