Common(wealth) Knowledge #122: High Court ruling is end of the road for Ben Roberts-Smith

The High Court has refused Ben Robert-Smith’s application for special leave to appeal.

The last avenue of appeal for Ben Roberts-Smith’s defamation defence has closed up, with the High Court rejecting his application, ruling that it had little prospect of success.

The refusal to hear the appeal comes more than 2 years after Justice Besanko held that the allegations that the retired Special Air Service Regiment corporal was involved in the deaths of four unarmed Afghans to be ‘substantially true.’

Roberts-Smith has maintained his innocence since the Federal Court of Australia’s judgment in Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) (2023), arguing that the incorrect burden of proof had been applied and that he was innocent until proven guilty.

The defamation proceedings were brought against Fairfax Media, The Age and The Canberra Times over articles published in 2018 that alleged Roberts-Smith was guilty of several war crimes.

Defamation cases fall into the broad category of civil law, in which the standard of proof is ‘on the balance of probabilities’ or ‘more likely than not.’

On appeal, Justices Perram, Katzmann and Kennett of the Federal Court of Australia’s Full Court unanimously agreed that Justice Besanko had applied the correct standard of proof.

In doing so, they quoted the unanimous decision of the High Court in Rejfek v McElroy (1965), which held that in civil cases “no matter how grave the fact which is to be found … the mind has only to be reasonably satisfied” of the conclusion.

The court stressed that the conclusion was not one of guilt; for Roberts-Smith to be found guilty, the criminal standard of proof of ‘beyond reasonable doubt’ would have to be applied. Only in a criminal trial could he face time behind bars.

Left with only one option, Roberts-Smith made an application for special leave to appeal to the High Court.

Appealing to the High Court is a two-step process, and special leave serves as a threshold for appeals. The limited time and resources of the court means that the High Court will only hear appeals that are ‘worth hearing.’

This is made explicit in section 35A of the Judiciary Act 1903 (Cth), which refers to the “interests of the administration of justice.”

The High Court will also consider whether a case and its ‘question of law’ is of “public importance.”

Finally, the High Court must consider whether it was “required to resolve differences of opinion between different courts … as to the state of the law.”

While the case was definitely important to the public, the question of law itself was the standard of proof that should be applied.

As the Full Court’s findings demonstrate, the question of the standard of proof is pretty cut-and-dried. A case is either a civil or criminal matter. As there was no question of guilt, only liability, the case was a civil matter.

That then means that the only question could be whether the civil standard of proof should apply. The Full Court was satisfied that it was ‘substantially true’ that he was either responsible for, or complicit in, the killings.

If both the trial judge and Full Court agreed, then the ‘differences of opinion’ component would require Roberts-Smith’s legal team to have very convincing evidence from judgments in other cases to demonstrate that there was a difference of opinion from other courts.

All 7 members of the High Court, which again speaks to the solidarity of opinion on the question of the standard of proof, concluded that there wasn’t any difference of opinion from other decisions.

Thus, there was “no question of legal principle.”

The burden necessary to satisfy the court on these requirements was made even greater by the fact that Roberts-Smith filed his appeal after the 28-day appeal period from the Full Court to the High Court had elapsed.

This meant that it would be necessary to ask for an extension of time to file the appeal.

An extension of time is also a question of the administration of justice, as the party must prove why their failure to file in time must be overlooked.

For the High Court to grant this, there must be ‘sufficient prospects of success’ for the question of law for it to be worth hearing.

As there was no question of legal principle, the court concluded that granting an extension would be “futile.”

Generally, when the applicant forces all other parties to attend court by seeking an extension of time, and the application fails, the court will order the applicant to pay the legal costs of those other parties.

This is also an administration of justice issue because the applicant has wasted everyone’s time by being late.

Given these circumstances, the court saw fit to make a costs order against Roberts-Smith.

As all three courts have made costs orders against Roberts-Smith, to the tune of 60%-70% of all other parties’ legal fees.

Fortunately for Roberts-Smith, and his financial backer Gina Reinhart, no criminal proceedings will be issued, so no more costs will be incurred, but the civil proceedings have cost the pair millions of dollars. It is likely that an exact figure will never be known.