ABC ordered to pay ex-commando Heston Russell’s legal fees

The ABC is facing a bill of significantly more than $1.2m in the fallout of its defamation battle with Heston Russell, after the public broadcaster was ordered to pay Mr Russell’s legal fees.

Heston Russell sued the ABC for defamation and won.

The ABC is facing a bill of significantly more than $1.2m in the fallout of its defamation battle with former commando Heston Russell, after the public broadcaster was ordered to pay Mr Russell’s legal fees.

Justice Michael Lee on Tuesday ordered the ABC to pay an inflated proportion of Mr Russell’s legal fees, known as indemnity costs, due to the fact the broadcaster rejected an early offer to settle the case.

As the costs order was being handed down, ABC managing director David Anderson was telling Senate estimates the broadcaster’s legal fees had ballooned to $800,000 – not including internal legal costs – on top of the $390,000 in damages it must pay for defaming Mr Russell.

The ABC, along with its journalists Mark Willacy and Josh Robertson, last week were found to have defamed Mr Russell after publishing two articles that implied he was involved in the killing of an Afghan prisoner.

The court on Tuesday heard the ABC had reached an agreement to pay ordinary costs incurred by Mr Russell’s legal team up until September 14 last year, which was around the date Mr Russell offered to settle for $99,000.

The broadcaster will pay indemnity costs from that date through to the conclusion of the case, covering a higher proportion of Mr Russell’s bill than the ordinary costs order, due to the fact the settlement offer was rejected.

However, Justice Lee said that if the ABC had not consented to the agreement, he would have reduced the bill, due to Mr Russell’s misconduct while on the stand.

ABC managing director David Anderson appearing at Senate estimates.

In the course of the trial, Mr Russell admitted to having altered an invoice he later gave to a journalist in an attempt to prove he had donated pledged funds to a charity, which he had raised through adult website Only Fans.

Justice Lee, in his judgment, rejected Mr Russell’s evidence in full, and found him to be “not an impressive witness”. As such, when ordering costs, Justice Lee said he would have taken out any legal costs related to Mr Russell’s time on the stand had the ABC not agreed to pay the costs.

“I made a finding that Mr Russell gave deliberately false evidence to the court. It is obvious but worth remarking that it is fundamental to the just resolution of disputes that the witness tells the truth,” the judge said.

“Absent of the consent of the respondents, I would have concluded that I will be acting in a manner contrary to facilitating the overarching purpose to allow Mr Russell any of his costs relating to dealing with the subject matter of his false evidence and the time spent by the respondents in the court in dealing with this issue.”

However, Justice Lee concluded it would be an “inappropriate exercise of discretion to proceed to reduce Mr Russell’s recovery in circumstances where the respondents expressly consent to the order proposed by Mr Russell.”

Mr Anderson on Tuesday said the public broadcaster was in a “28-day period” of assessing whether or not it would appeal the judgment made in the case involving Mr Russell.

When Liberal senator Sarah Henderson asked about the $99,000 offer made by Mr Russell four days after the lawsuit was filed, Mr Anderson said the offer had expired before the ABC had completed its defence. “My understanding was the offer was very early on in the proceedings and … whatever period that was valid for, expired before we completed our defence,” he said.

Mr Anderson revealed the ABC’s legal fees in the case were already up to $800,000.

He said he would not apologise to Mr Russell over the reports that resulted in him taking court action. “There’s a lot to learn from this, whatever happens here, appeal or not,” he said.