(Image: Private Media)

The Ben Roberts-Smith defamation hearing has been bedevilled by events of biblical proportions — wars, pestilence and revenge. Management of a case involving witnesses in Afghanistan and several Australian states, secret Defence department files and millions of dollars in legal fees was never going to be simple, but the recent COVID restrictions in NSW have presented the Federal Court with a unique set of problems. 

This morning Justice Besanko said that the hearing, currently in “suspended animation”, would be resumed next week to hear evidence from witnesses in Kabul. Time is running out for this part of the case, as the Taliban is steadily approaching the Afghan capital. In addition, electricity and telecommunications links are becoming unreliable, the court heard.

Roberts-Smith is suing three newspapers and three journalists for defamation, claiming that they falsely portrayed him as a war criminal and a murderer. Several of the SAS witnesses live in WA and they and their legal representatives would have to quarantine for two weeks to give evidence in NSW.

The former soldier’s counsel, Bruce McClintock SC, raised the possibility that the entire hearing could move to a third state — either SA or the ACT — to get around the worsening NSW COVID situation. 

He said that many of the SAS witnesses were experiencing declining mental health. One of them, named Person 70, is unable to give evidence due to his “bad psychological condition”. 

The senior counsel said that the current delay was “an added stress on my client. He is separated from his children, he has stood down from his job to deal with this, his parents have come over from Perth — his life is on hold until this case is over”.

It was imperative to get this case on as soon as possible, McClintock told the judge. 

The matter will have another directions hearing this week and will resume next week to hear from the witnesses in Kabul.