On the second day of the largest modern defamation trial, the focus has been on money. Top silk Bruce McClintock SC has been quantifying some of the damages he will be seeking if his client, former soldier Ben Roberts-Smith, wins his defamation action against a group of media outlets.
McClintock told the court that for the 2018 financial year, Roberts-Smith had enjoyed a lucrative speaking career, earning a total of $320,000. Straight after the first articles appeared those bookings “evaporated”, reducing Robert-Smith’s income to zero, he said.
Roberts-Smith is one of the country’s most highly decorated soldiers and was awarded a Victoria Cross, Australia’s highest military honour, for bravery under fire in Afghanistan.
As befits a hearing that has been called “a war crimes tribunal disguised as a defamation trial”, the public seats have been packed with former soldiers, hangers-on and supporters of both sides.
Roberts-Smith’s parents, Len and Sue, attended yesterday’s opening and sat directly behind him. As McClintock spoke of the alleged actions of his son, Len looked agitated and upset, his visible distress evident in a jiggling left knee and occasional shake of the head. During the breaks, his elegant mother, clad in a sombre navy pantsuit, linked arms with Roberts-Smith, patting his arm.
Also over on the applicant’s side of the court yesterday was Seven’s commercial director Bruce McWilliam, watching closely. Roberts-Smith has been working as an executive at Seven West Media and is said to be very close to Seven’s majority shareholder, Kerry Stokes.
Today Chris Masters was also in court, sitting in the front row of the public gallery next to Len Roberts-Smith. Nick McKenzie, under lockdown in Melbourne, was watching on video link.
As this is McClintock’s last major trial before retirement he obviously decided to go out with all guns blazing.
The stakes could not be higher.
McClintock said this morning that in addition to the speaking income, before the stories were published Roberts-Smith had been made an offer of a partnership in a large accounting firm. After the stories appeared, both parties agreed that it would be better if the job offer was held over until the court case was resolved. Before publication there “could not have been a soldier better known than my client”.
“The effect of these articles was to smash and destroy this reputation,” McClintock said. “Before 2018 he was inundated with invitations. This year, none.”
An accounting expert will give evidence that the loss of income would be in the vicinity of $475,000, he said. However, that figure will be loose change if the soldier’s claim for aggravated damages succeeds. McClintock has flagged a number of times that he will be making a claim for aggravated damages which, if successful, could run into the millions.
He said this morning that the media articles contained “allegations of murder and war crimes and there really can be nothing more serious than that”.
“Also, the allegation of domestic violence is extremely serious and inordinately damaging to my client. At the end of the case those will be the matters I’ll be using to ask for damages,” he said.
Roberts-Smith is suing Nine’s newspapers The Age and The Sydney Morning Herald and their former stablemate The Canberra Times over a series of stories detailing his alleged gross misconduct in Afghanistan against both fellow soldiers and unarmed civilians. He is also suing over a story which alleges domestic violence against a former partner (not his wife). The soldier’s former wife, Emma Roberts, was slated to appear on his behalf but has changed her mind and will now appear as a witness for the media outlets.
This is a crucial case for the former Fairfax newspapers, now owned by Nine. Yesterday James Chessell, executive editor of Australian Metro Publishing, was in the court watching shareholders’ money tick over at the bar table. The SMH and The Age have a total of three journalists here, reflecting the mastheads’ positions as chroniclers and participants. News Corp, as usual, has decided to take the opposite side of the matter and has been firmly pro-Roberts-Smith. Nine Entertainment, through its ownership of the newspapers, and Seven are also on opposite sides.
McClintock also said this morning that former governor-general Dame Quentin Bryce would not be appearing to give evidence for the former soldier for “personal reasons”. However, she has never withdrawn her support for Roberts-Smith, he said.
The court has now closed to media and the public while the judge hears confidential matters. The hearing is scheduled to run for 10 weeks.