1 min read
05 Jun 2023
The Federal Court of Australia recently handed down its decision in the defamation proceedings brought by Ben Roberts-Smith against various media outlets and journalists. The high-profile cases attracted significant public and media attention.
In the proceedings, Mr Roberts-Smith alleged that various publications communicated imputations (meanings) concerning unlawful and unethical conduct in the course of his military service in the Special Air Service Regiment. He alleged that certain publications also communicated imputations to the effect that he had engaged in bullying other defence personnel, committed family violence and that he was a hypocrite as he publicly supported family violence prevention initiatives while allegedly committing domestic violence. Mr Roberts-Smith alleged that these claims were false and defamatory.
The media outlets and journalists relied on defences of justification or substantial truth and other defences. They also relied upon contextual truth defences, which allowed them to plead alternative meanings and establish them to be true to argue that the false and defamatory imputations did not cause further reputational damage beyond the true ones.
The outcome was that Mr Roberts-Smith was largely unsuccessful in his claims. The respondents had established the substantial and/or contextual truth of many of the imputations in issue. The court will consider the consequential orders, including in relation to costs, at a later hearing.
While most defamation proceedings will not attract as much interest as those of Mr Roberts-Smith, they are inherently public in nature. Pursuing defamation proceedings can draw further attention to defamatory publications and imputations and come with the risk that a court will find that a respondent has succeeded in establishing a defence, including one of substantial truth.
On the other hand, successfully suing for defamation may in some cases be the only way in which to restore a reputation.
As in most litigation and disputes many cases don’t end up in court and there are many interim steps before a case is heard in court. These interim steps, such as correspondence and mediation, can yield a positive outcome. In defamation matters, concerns notices and offers to make amends are valuable tools for prompt and cost-effective dispute resolution. Each has formal requirements to be effective and it is advisable to have them prepared by an experienced defamation lawyer.
If these interim steps are unsuccessful you may consider escalating the matter and you will need careful case management for your claim to be successful. There are several important considerations when deciding whether to pursue defamation proceedings and it is important to access legal advice at an early stage:
Before suing in defamation or responding to a claim, it is important to obtain legal advice from litigation lawyers experienced in defamation matters. The earlier advice is sought, the better, as it ensures a realistic understanding of the legal issues likely to arise and a consistent strategy from the outset.
At PCL Lawyers we have successfully helped clients in defamation matters. Reputational issues are complex and we are experienced and can quickly identify the issues and strategise a plan to resolve the dispute with you. We work to obtain a swift, effective and favourable outcome for our clients.
Disclaimer: This article has been prepared for general information purposes and may not apply to your situation. This information should not be relied upon for legal, tax or accounting advice. Your individual circumstances will alter any legal advice given. The views expressed may not reflect the opinions, views or values of PCL Lawyers and belong solely to the author of the content. © PCL Lawyers Pty Ltd.
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Roland Müller leads our commercial litigation team. He is a highly-experienced lawyer, an accredited specialist in commercial litigation and a nationally-accredited mediator. Equally comfortable...
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