Ben Roberts-Smith’s personally disastrous defamation case is not the complete victory it seems for Australian journalism.
The gruelling five-year legal battle will leave the Nine stable out of pocket by a seven-figure sum, even after payment of costs.
As he took the train from his home on the New South Wales Central Coast to hear the judgment in Sydney, the veteran investigative journalist Chris Masters was in a ruminative mood.
“Sadly, irrespective of the outcome, this won’t be encouraging to brave, responsible, risk-taking journalism,” he told me. “If this is what it takes, it’s too much.”
A defamation specialist, Dr Matt Collins KC, said “no new law” had been created in the Roberts-Smith case. “It was purely about the facts, who was telling the truth.”
The new ground was the sheer financial scale.
A senior legal source with intimate knowledge said the final bill could top $35m, including the costs for commonwealth barristers who attended court.
The two main parties, Roberts-Smith and the journalists and outlets he was suing, are believed to have run up at least $25m between them.
So here’s the arithmetic.
When a winning side claims costs, Collins said it typically recoups 66% to 75% of their actual legal bill.
Nine has indicated it will seek what are called “indemnity costs”. In exceptional circumstances, according to the federal court website, a successful party can seek “all legal costs and disbursements that a party reasonably and properly incurred”.
In practice, according to Collins, that’s no more than 85% to 90% of actual costs. Usually the party would have to prove the other side rejected an earlier offer to settle. That Roberts-Smith was given an option to settle and didn’t take it would itself raise questions about his judgment and that of his legal team.
But on those numbers, even in winning, Nine will be out of pocket at least $1.25m. On a conventional cost finding, it will be more like $4.25m. And that assumes Roberts-Smith has the means, or the friends, to pay.
Which explains Masters’ somewhat morose mood on the day of one of the biggest legal victories of his celebrated journalistic career.
“This should go down in history as one of the great moments in Australian media,” he said. But journalism still faced “death by a thousand courts”.
Nine’s managing director, James Chessell, says his organisation would continue its pursuit of Australian war criminals. But Masters said institutional self-censorship is almost unavoidable.
“The costs are prohibitive irrespective of the outcome,” he said. The media was “already on its knees”. Making judgments on which stories to pursue, even when you’re confident you’re right “is as much a game of deep pockets as a contest of the law”.
Masters’ work for Four Corners in the 1980s helped bring down the corrupt Bjelke-Petersen government In Queensland. He won the Gold Walkley, Australian journalism’s highest prize, for revealing that the bombing of the Greenpeace boat Rainbow Warrior in Auckland was an act of state terrorism by France. Another major Walkley came with his revealing book on the Sydney power-jock Alan Jones.
But court action lasted 13 years after his Queensland exposés. Now a further five years in the courts over his work on war crimes.
“I don’t know that I can call that a victory.”
Still, the opposite result from Judge Anthony Besanko would have been, Masters said, “the death knell” for serious journalism in Australia. “The media will be herded into the shallow water [of only reporting insignificant stories].”
Collins agrees. Had Roberts-Smith won, “what stories are likely to be spiked? How much more likely are media organisations to go after the powerless rather than the rich and powerful who can afford to take you on?”
Instead, journalism is out of pocket after the Roberts-Smith show. But at least it’s still alive.
Hugh Riminton is national affairs editor at 10 News First
