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Judge says defamation costs order could have been reduced
An indemnity costs order may not have been awarded to a former soldier following his defamation win over the ABC had the national broadcaster not so freely consented, a Federal Court judge said.
Naomi Neilson
Heston Russell, a former soldier found to have been defamed by an ABC article published by journalists Joshua Robertson and Mark Willacy, was on Tuesday (24 October) granted costs of the proceedings on an indemnity basis. The ABC consented to this proposed order.
Justice Michael Lee said he would have “made a different order” if the ABC had not consented to it due to “deliberately false evidence” Mr Russell gave to the court during the defamation trial.
This evidence concerned a “somewhat peripheral matter” during Mr Russell’s cross-examination. It related to a receipt he sent to Mr Robertson following a dispute with a veteran charity.
“It is obvious but worth remarking that it is fundamental to the just resolution of disputes that a witness tells the truth,” Justice Lee said.
“I would have adopted a rough and ready approach to the compensatory order, estimating the percentage of hearing time, submissions and evidence devoted to this issue and reducing the overall costs Mr Russell would otherwise have been able to recover.
“Given the proposed order is the subject of consent, I will make it notwithstanding that I would have made a different order.”
The costs order was awarded on an ordinary basis up until mid-September 2022 and will then be charged on an indemnity basis.
This switch relates to the ABC’s rejection of an offer made by Mr Russell’s lawyers four days after the lawsuit was filed.
His barrister, Sue Chrysanthou, had previously told the court the offer would have seen a judgment in the sum of $99,000.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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