Ben Roberts-Smith’s defamation trial against former Fairfax newspapers and journalists will likely not resume this year as uncertainty remains about where it will be held.
The Victoria Cross recipient is suing publications The Sydney Morning Herald, The Age and The Canberra Times over stories alleging he committed war crimes while deployed as an SAS soldier in the Middle East.
Mr Roberts-Smith denies the allegations, which include him committing or being complicit in the murder of Afghan civilians, and refutes claims he assaulted a woman with whom he was allegedly having an affair.
The publications are defending the reports from 2018 as true.
The blockbuster trial before the Federal Court in Sydney began in June but was abandoned in August after NSW’s disastrous outbreak of the Delta strain of Covid-19.
Trial judge Justice Anthony Besanko on Friday vacated a November 1 date that had been set for the hearing to resume and announced a new trial date is due to be fixed following a hearing on December 3.
Justice Besanko also chose not to order the trial to move to Adelaide, as argued by Mr Roberts-Smith’s lawyers, or decide whether it would continue in Sydney.
In his judgment Justice Besanko said there was considerable uncertainty about the restrictions likely to be in place for witnesses and parties travelling interstate to attend court.
Of the remaining witnesses, 12 would travel from Western Australia, which remains closed off to NSW.
“That might depend on what happens between now and then in terms of border restrictions between South Australia and NSW and between South Australia and Western Australia,” he said.
“I would only make an order for relocation of the trial if I was satisfied that there was a reasonably clear and certain benefit in doing so. In the circumstances, I was not satisfied that that was the case.”
Justice Besanko said he noted that Mr Roberts-Smith was “anxious” for the trial to restart as soon as possible.
He wrote that the trial could resume in early 2022 and raised a prospective trial date of January 17.
“However, circumstances were too uncertain to suggest that that date should be fixed,” he said.
“I make the point, obvious though it may be, that in the rapidly changing circumstances assumptions made at one point in time may not be appropriate at a later point in time.”
Earlier this month, Mr Roberts-Smith’s lawyers filed an application for the trial to resume in Sydney on November 8 to hear from six witnesses before being moved to Adelaide in December.
Under their plan it would have run from December 6 to 22 and then break until January 24, 2022.
Newspaper lawyers opposed the application and asked the trial be adjourned until February 28.
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