An extraordinary week for defamation plaintiff Heston Russell in his case against the ABC
Last week was an extraordinary week for defamation plaintiff and former Australian army major and special forces commando Heston Russell. On Wednesday, the respondents (the ABC and two of its journalists, Mark Willacy and Josh Robertson) abandoned their last remaining defence, just two weeks before the trial was due to commence in the Federal Court.
In an emergency hearing on Wednesday afternoon, Mr Russell’s counsel told the Court that as a consequence of the respondents’ withdrawal of their defence, Mr Russell was entitled to judgment. Mr Russell’s victory was widely reported in the media, and Mr Russell was no doubt celebrating the unexpected news that he had won his case and the only issue left to be decided was how much he would receive from the respondents by way of damages.
At another hearing on Friday however, the respondents spectacularly reversed their position, and asked the Court to allow them to resuscitate their defence, in an application described by Justice Michael Lee as “unusual”.
Mr Russell commenced proceedings against the ABC, Mr Willacy and Mr Robertson in October last year, after his attempts over many months to extract a public apology from the broadcaster in relation to two articles which he said defamed him and his fellow platoon members proved unsuccessful. The proceedings relate to the two articles, plus a radio broadcast and a television broadcast published by the ABC in November 2021. The publications allege that Mr Russell and November Platoon were involved in the murder of an Afghan prisoner. Justice Lee found earlier this year that ten defamatory imputations were carried by the publications.
Why did the ABC abandon its defence?
The first iteration of the ABC’s Defence, filed in October last year, contained defences of justification (or truth), contextual truth, and the new defence of public interest, which was introduced in New South Wales (and in most other Australian jurisdictions) in July 2021. The application of the new public interest defence has yet to be considered at trial by an Australian court. In May, the ABC withdrew the first two defences, so that by last Wednesday, only the public interest defence remained. As a sidenote, the ABC conceded before the proceedings were commenced that the main source for its stories, a US marine known only as “Josh”, never told Mr Willacy that his allegations were about Mr Russell or his platoon. A “clarification” to this effect was published under one of the online articles in March 2022. Therefore, it is unclear on what basis the defence of justification was initially pleaded by the respondents.
The reason the ABC gave for abandoning its public interest defence and handing Mr Russell victory, was the decision of Justice Lee, made last Monday, ordering the ABC to reveal the identity of “Josh”. The ABC’s barrister told the Court on Wednesday that Mr Willacy would not reveal “Josh’s” identity. That night, the ABC issued a press release, which said in part:
“The ruling in the Federal Court resulted in the ABC having to choose between protecting the identity of its source by upholding a pre-publication commitment made to the source to not reveal their real name – versus continuing its defence of the defamation proceedings. The ABC had no choice but to uphold its commitment and abandon its defence of proceedings.”
His Honour Justice Lee said in his judgment following Friday’s hearing that the ABC’s press release struck him, at the time it was published, as “a curious document”. This was because, in Justice Lee’s words:
“Even if the statutory defence of public interest was abandoned, given the way particulars of aggravated damages had been given, Mr Russell would inevitably press at trial for the revelation of the unknown name of the “confidential” source. If “Josh’s” name had to be given up anyway because of the way the claim for aggravated damages was to be advanced, what was the reason for abandoning the defence at this time?”
In other words, the ABC might have to reveal “Josh’s” identity whether it dropped its public interest defence or not. His Honour also noted that:
“It was also curious because […] the ABC had already provided orders to the Court expressly noting they were prepared to agree to a confidentiality regime with respect to “Josh’s” name and permit his name to be uncovered to the Court and Mr Russell’s legal representatives.”
The ABC sought to rely on the so-called “Newspaper Rule” to protect “Josh’s” identity at trial. The rule protects media defendants from disclosing their sources of information, at least prior to the final hearing. Justice Lee said that he would defer consideration of the application of the newspaper rule to the trial, if necessary.
Justice Lee also revoked his orders compelling the respondents to reveal the identity of their confidential source, as Mr Russell’s lawyers had filed a confidential affidavit establishing to his Honour’s satisfaction “Josh’s” real name. Mr Russell’s lawyers had been able to discern “Josh’s” identity through information the ABC had itself published, including his photograph, details of his unit and the dates of his deployment in Afghanistan. Justice Lee said on Friday that the dispute over the ABC’s refusal to reveal “Josh’s” identity was “developing into a bit of a farce”.
What happens next?
The trial is due to be commence in under two weeks’ time. In order to succeed in their defence, the respondents must prove that the publications about Mr Russell:
concern an issue of public interest; and
the respondents reasonably believed that their publication was in the public interest.
Mr Russell’s barrister, in objecting to the ABC’s application to revive its public interest defence, said the defence “was so hopeless it never should have been pleaded”. Time will tell.
