Nine and Fairfax … Lawyers suing their client’s journalists … Messy loose end of the takeover now sorted … Lawyer makes unfounded allegations on behalf of his defamation client … “A massive unit” … Clarity, detail and accuracy missing in action 

It was quickly apparent that Nine’s traditional defamation law firm in Sydney, Mark O’Brien Legal, faced conflicts as it was also acting against Nine’s newspaper subsidiary, previously known as Fairfax Media. 

O’Brien has made a choice. He will withdraw from 40 cases in which he was acting for Nine and keep 10 in which he is acting against Nine Publishing. 

Among his Nine matters was another case in which the Wagners are suing the network in the Supreme Court of Queensland. 

At the same time, he has been acting for army veteran Ben Roberts-Smith against Nine’s newspapers. He is also acting for Chinese-Australian businessman Chau Chak Wing in his various actions against the papers and in previous cases was the instructing solicitor in the Joe Hockey v Fairfax litigation and also for the now stayed Craig McLachlan v Fairfax & ABC trial. 

O’Brien Legal’s work for Nine will now be spread among Banki Haddock Fiora (Fairfax’s traditional litigation and pre-publication lawyers in Sydney); Macpherson Kelley; and Bird & Bird. 

Raeshell Staltare-Tang (ex-O’Brien Legal) is now a senior associate at Two Birds. 

All the Nine newspapers pre-publication work is being handled in house by Larina Alick with assistance from Sam White, on secondment from The Age’s lawyers in Melbourne, Minter Ellison. 

Journalists at The Sydney Morning Herald have made it clear to their new management that they are entirely opposed to O’Brien switching sides and acting for them. 

Riding shotgun in this enterprise has been Bruce McClintock SC. 

Roberts-Smith is suing The Age, The Sydney Morning Herald, The Canberra Times and journalists Nick McKenzie, Chris Masters and David Wroe over a series of articles in 2018 that alleged misconduct, bullying and intimidation by the former member of the Special Air Service Regiment (SASR) while serving in Afghanistan. 

Roberts-Smith is also suing over an allegation of domestic violence involving a woman with whom he reportedly had an affair. 

The Federal Court has ordered that the identity of one of the defendant’s witnesses, known as Person 17, be suppressed as there was a “sufficient risk” to her safety from supporters of Roberts-Smith. 

Person 17 is understood to be the woman with whom Roberts-Smith had a six-month affair in 2017-18. 

A delegate of the Inspector-General of the Australian Defence Force is currently investigating Roberts-Smith, and other soldiers, in relation to war crime and misconduct allegations in Afghanistan.

Last month another report from the inspector-general emerged with findings that there was “no evidence whatsoever” for allegations by Mark O’Brien that the war crimes inquiry spread biased rumours about his client, Ben Roberts-Smith. 

Although the war crimes inquiry is proceeding in camera, the ADF inspector-general responded to O’Brien’s bias allegations with a three month-long investigation and then publicly released the findings.  

On June 28, 2018, O’Brien made the following complaint to the war crimes inquiry:

“On or about May 12-13, 2018, a lawyer told an acquaintance of our client that ‘if you know anyone looking to go into business with Ben Roberts-Smith, then tell them to be careful – I am working on a case against him’. 

We understand that the lawyer is related to Ms Catherine Arnold and that the conversation occurred at a social event in Sydney.

We believe the lawyer is working for the inquiry.”

It would certainly assist the client if it could be shown that the inspector-general’s investigation inches his conduct was biased. 

O’Brien described the alleged comments as “defamatory gossip” and said they “demonstrate bias against our client and raise a serious concern about the integrity of the inquiry”.  

He then demanded an investigation, which promptly got underway. 

All five ADF staff involved in the inquiry, three of whom were lawyers, denied making the alleged comments. 

On July 3, 2018, the inquiry wrote to Mark O’Brien Legal, asking for the identity of the gossiping lawyer and of the acquaintance who received the gossip. 

On July 6, Mark O’Brien Legal replied, but didn’t add much more flesh to the complaint:

1. Our client is unable to identify the lawyer to whom the allegation relates.

2. The lawyer made the comments to Catherine and Gordon Arnold at an event in Sydney during the Mothers’ Day weekend this year. 

The inquiry was scratching its head. Clarifications were requested and on July 12, 2018 O’Brien replied: 

“The person to whom the comments were made about our client is Gordon Arnold … The lawyer who made the comments … is related to Catherine Arnold. … The acquaintance to whom we refer in our letter dated 28 June is a third person, Mark David … The Arnolds passed on the said lawyer’s comments to David, who in turn, passed on the comments to our client.” 

One acquaintance had now mushroomed to three and it looked like quite a job to untangle the puzzle. 

The inquiry’s sleuthing revealed Catherine Arnold was the niece of Lieutenant Colonel Geoffrey, an ADF reserve legal officer. 

Geoffrey had never worked for the inquiry, and had contact with its staff just once, concerning an abortive job application more than a year before O’Brien’s allegations. 

Geoffrey was then contacted about the complaint, and said he had briefly met Roberts-Smith when the two were serving in Afghanistan in 2010. 

He also admitted to seeing the Arnolds at a Mothers’ Day function – not in Sydney, but in regional NSW. He denied saying anything to the effect that Roberts-Smith was under investigation. 

If anything, Geoffrey said, he might have commented generally that Roberts-Smith “seemed to be a nice guy and a ‘massive unit’.”  

So while he was related to Catherine Arnold he was not a lawyer “working for the inquiry” and was not in a position to “work on a case against” Roberts-Smith.  

After the Mothers’ Day function, the Arnolds stayed with Mark David, a long time family friend. Both Gordon Arnold and Mark David seem to have ties to the ADF, and are now both business consultants. 

During the Arnolds’ stay, the two men had a “one-on-one conversation in a social environment which included the consumption of alcohol”. 

The pair say they discussed a vague “someone” – who Arnold conjectured was a journalist – “dishing dirt” on Roberts-Smith. They also talked in general terms about a “case” being “worked up” against the SAS. 

The men maintain, and the inquiry found, that they were speaking on matters of public knowledge. Both deny they had any insider knowledge about the inquiry into Roberts-Smith, and claim nothing was said about that inquiry in their conversation. 

Arnold was adamant that he did not even know “who or what” constitutes the ADF Inspector-General.

The pair also deny Arnold advised David against going into business with Roberts-Smith. 

Another dead-end. 

Dr David, it turns out, is one of Roberts-Smith’s gym buddies. He admitted he might have told Roberts-Smith about his conversation with Gordon Arnold. Again, he denied saying anything that could amount to the comments alleged by O’Brien. 

He also denied ever mentioning Gordon Arnold by name, and surmised Roberts-Smith or his lawyers used internet searches to figure out the connection between the two men. 

The inquiry took O’Brien’s complaint as one of bias (real or apprehended) and of improper conduct by the release of confidential information.

While the investigation was ongoing, O’Brien’s allegations were soon aired before the Federal Court, during another round in the defamation case dealing with the secrecy of certain documents. 

This was followed by a Weekend Australian news article, originally entitled “Lawyer’s ‘smears against SAS hero”.  The News Corp newspaper has been on the drop from PR people hired by Ben Roberts-Smith team. 

With public knowledge of the claims, the reputation of a small, identifiable group of lawyers was now on the line. 

In its written decision, the inquiry first made a detour via High Court justice emeritus Dyson Heydon, who as trade union royal commissioner, ruled on the standards of impartiality required of commissions of inquiry. 

Relying on that decision, the ADF inquiry said “a commissioner of inquiry may take a more interventionist role than a judge in conducting hearings”. 

Ultimately, the inquiry found there was no need to decide whether Heydon’s pronouncements applied in the present case. 

That was because there was simply no factual evidence to support O’Brien’s bias claims.  

There were considerable doubts about the reliability of the claim. 

This, on top of the witnesses’ strong denials, meant the complaint was dismissed. 

In its decision, the inquiry described O’Brien as a “senior and experienced lawyer, who it would be assumed would have taken care that he had instructions to support” the bias allegations. 

Indeed, O’Brien makes great professional hay out of insisting that journalists who he is suing check and get things right before putting pen to paper.