As Australian troops withdraw from Afghanistan the war involving VC recipient Ben Robert-Smith heats up … New allegations against the former soldier … Defamation proceedings have not kyboshed fresh news breaks … Kerry Stokes’ role as a litigation funder … Hero worship knows no bounds … Important trial for journalism and public interest reporting 

The stories keep rolling out, despite the defamation action he has launched in the Federal Court against Fairfax Media Publications and journalists Nick McKenzie, Chris Masters and David Wroe over a series of articles in 2018 alleging Roberts-Smith was involved in war crimes, bulling and intimidation while he served in Afghanistan. 

The defamation case is monumental, with around 20 case management hearings and 10 interlocutory judgments, to date. Already the costs are eye watering. 

The applicant has had limited success so far – he was able to redact some of the information relating to Family Court proceedings; he was partially successful with a public immunity claim; and the respondents have been required to amend some particulars. 

The trial is scheduled to commence in June and it is widely anticipated to be one of the most important tests for public interest investigative journalism. 

The defamation case against Fairfax and the journalists has not slowed the output of damaging news about the war “hero”. If defamation actions are supposed to chill the news, here we find it has exactly the opposite effect. 

Apart from the four year IGADF inquiry, the AFP also has been investigating Roberts-Smith – for an alleged conspiracy to silence witnesses and the brutalisation and execution of unarmed Afghan prisoners. 

The Fairfax lawyers are now seeking an explanation from Roberts-Smith’s people at defamation law shop Mark O’Brien Legal about the alleged concealment of documents relevant to the litigation. 

The IGADF’s report found that patrols in Afghanistan took the law “into their own hands”, and there is credible information about war crimes committed by Australian troops which operated in a culture of fabrication and deceit. 

Brereton recommended 19 soldiers be investigated by the AFP for the murder of 39 prisoners and cruel treatment of others. In all, 36 incidents should be referred to the police. 

Former Commonwealth DPP and Victorian appeal judge Mark Weinberg has been appointed to investigate Brereton’s findings and prepare briefs of evidence for the DPP. 

In July 2017, the ABC published The Afghan Files, a comprehensive report by journalists Dan Oakes and Sam Clark about SAS personnel running amok in Afghanistan. 

It is understood that the story was based on documents leaked by whistleblower and former Army lawyer David McBride, himself now the subject of charges that include theft of Commonwealth property and unauthorised disclosure of material. 

Two years after publication of The Afghan Files the AFP raided the ABC’s Ultimo headquarters seizing material connected to the publication of that story. 

Another three years and three months later, the Commonwealth DPP announced that it would not proceed with a prosecution of journalist Dan Oakes. 

The prosecutors said there was a reasonable chance of securing a conviction over publication of information based on classified documents, but there was no public interest in pursuing the case. 

Yet, the prosecution case against David McBride is ongoing. The Commonwealth’s agenda has been to make every effort to criminalise reporting of public interest information.  

Seven West Media boss Kerry Stokes is financing Roberts-Smith litigation and a campaign largely conducted by Sue Cato PR operatives through the Murdoch press, seeking to discredit the work of the Fairfax/Nine journalists. 

Stokes is in the front row of the military cheer-squad, chairman of the Australian War Memorial and an inveterate buyer of medals, army memorabilia and trinkets at auctions. 

Initially $1.87 million of Seven West Media’s money was lent to Roberts-Smith for legal expenses, however in June last year Stokes’ private company took over the debt and continued the arrangement, which requires a payment of 15 percent of any award of damages back to the media proprietor’s interests. 

The Victoria Cross medal is collateral in the event Roberts-Smith loses his defamation case and can’t pay back the loan. 

It’s an extraordinary situation, since it is unlikely that Stokes’ media companies, which include The West Australian, will be fearlessly reporting these new revelations about the former soldier. 

Effectively, media proprietor Stokes has joined the war against whistleblowing and serious reporting, which means he has betrayed the true and proper mission of being a TV and newspaper proprietor. At one point the lawyers on his drip were after Fairfax’s sources. 

All this appears less important than the protection of a war veteran and employee. 

In the meantime, Sandy Dawson SC, the respondents’ lead barrister in the defamation case has had to withdraw due to illness. He is being replaced by Nick Owens SC, while Bruce McClintock ploughs on for Roberts-Smith. 

Arthur Moses SC has been brought in by the people at O’Brien’s defamation law shop for some of the case management hearings.

He took an aggressive approach to an application, which was granted by Justice Anthony Besanko, to permit the appearance of witnesses in Afghanistan by audio-visual link – describing the respondents’ successful application as “laughable … shambolic … scrambling … filled with desperation … embarrassing … disconcerting … Waiting for Godot … unprofessional … [and] nonsense”. 

He wanted the application to be dismissed with an order for indemnity costs – which didn’t happen. 

Needless to say, the attorney general’s people want chunks of the trial to be held in secret. National security and all that. 

Now that Australian and allied troops are to come out of Afghanistan, it might be a good time to ask “what was the point of it all?”