ABC ordered to pay Heston Russell’s costs in defamation case

The ABC has agreed to pay the costs of a former soldier’s defamation case, in addition to paying him $400,000 in damages, but refuses to apologise.

A former special forces commando will have his court costs paid by the ABC, in addition to more than $400,000 he received in damages after the broadcaster removed defamatory articles.

Heston Russell sued the ABC and two investigative journalists for defamation over stories published in 2020 and 2021 he claimed made it look like he was being investigated for shooting an unarmed prisoner.

Mr Russell was awarded $390,000 in damages, which comes to $412315.15 with interest.

At a senate grilling on Tuesday, ABC managing director David Anderson refused to apologise to Mr Russell, saying he wouldn’t say sorry despite the defamation loss.

Mr Anderson said the ABC was still considering its options during the 28-day appeal window.

“I am not going to apologise to Mr Russell,” he said.

“It was the first time we have tested a public interest defence in defamation, there is a lot to learn from it.

“Whatever happens here, appeal or not, there is a lot to learn from the ABC’s perspective.”

Following his win, Mr Russell’s barrister Sue Chrysanthou SC told the court her client was seeking indemnity costs from the ABC after her client had offered to settle the case for $99,000 and removal of the articles on September 12, 2022. It was not accepted by the ABC.

On Tuesday, Justice Lee told the court the ABC accepted Mr Russell obtained a judgment more favourable than the terms of the offer.

NCA NewsWire understands costs in the proceedings have exceeded $1.5 million for either side.

The ABC has agreed to pay Heston Russell’s costs of his defamation trial. Photo by: NCA Newswire / Gaye Gerard

“They have indicated to me that they expressly agree to pay his costs on an ordinary basis before 11am on 14 September 2022 and on an indemnity basis thereafter,” Justice Lee said.

Due to the order being consented by both parties, the judge made it despite saying he would have made a different order if it were up to him.

“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 the witness tells the truth,” Justice Lee said.

“Absent to 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.”

The ABC director on Tuesday said it wasn’t the intention of the ABC to “damage anyone” but the broadcaster had a responsibility to hold people to account, including Australian Defence Force personnel.

“As an agency head, I am going to take legal advice on what to do next,” Mr Anderson said.

“As you have pointed out, we have spent a lot of money on this and I want the legal advice on what we do next.”

The ABC has spent some $800,000 on external legal fees on the case, in addition to Mr Heston’s $400,000 payout, Mr Anderson said.

Victorian Liberal Senator Sarah Henderson blasted the ABC’s legal representation and the judgement of news director Justin Stevens, but Mr Anderson defended Mr Stevens as an “excellent director” of news.

Mr Russell was represented by Sue Chrysanthou SC. Photo by: NCA Newswire / Gaye Gerard

The stories Mr Russell claimed defamed him, written and produced by journalists Mark Willacy and Josh Robertson, aired on television, radio and online in October 2020 and more than a year later on November 19, 2021.

Justice Michael Lee found the national broadcaster could not prove the articles were reported in the public interest and had caused the former soldier serious harm.

Justice Lee told the court if it weren’t for the consent of both parties, he would have reduced the overall costs Mr Russell would have been able to recover.

He ordered the ABC pay Mr Russell’s costs on an ordinary basis prior to September 12, 2022, and on an indemnity basis thereafter.

Justice Lee asked both parties to provide bills and invoices to the court so he could make a formal order on the amount of costs paid to Mr Russell.

Throughout a nine-day trial over July and August, the court was told the allegations in the now-deleted articles arose from a US Marine named “Josh”, who contacted Mr Willacy about his time in Afghanistan working with Australian soldiers.

The witness has since apologised to Mr Russell about his involvement in the case.

Nicholas Owens SC represented the ABC. Picture: NCA NewsWire / Dylan Coker

Justice Lee, in his judgment, found he had “no doubt” Mr Willacy believed the publication of the articles were in the public interest.

But taking in his conduct on a whole, the judge said Mr Willacy’s belief was “not reasonable in the circumstances” and found the journalist had not established the defence of public interest.

He found Mr Robertson did not act reasonably when he sought a response from Mr Russell ahead of the publication of the November article, having “not procured” all the information he could have “reasonably obtained”.

Following the result, Mr Russell told media outside court the ABC had “finally been exposed for its false allegations against Australian veterans”.

“The Federal Court decided it was not in the public interest for the Commandos of November Platoon to be accused of heinous war crimes without any basis,” he said.

He said he was grateful to the court for the “expert determination” which came just a year after proceedings commenced.

Originally published as ABC ordered to pay Heston Russell’s costs in defamation case