The ABC's decision to drop its defence of an ex-commando's defamation lawsuit has been swiftly reversed and the case will now head to trial with the public broadcaster's behaviour being described as a "farce".
On Wednesday, the ABC decided to drop its public interest defence against a Federal Court lawsuit by former special forces major Heston Russell.
Ordered the day before to hand over unredacted material, the national broadcaster said it would rather abandon its defence than be required to name a confidential source, referred to as Josh, who said he saw Australian soldiers execute a hogtied prisoner in Afghanistan.
During a hearing on Friday, Justice Michael Lee permitted the ABC to reinstate its defence after hearing Mr Russell and his lawyers had likely uncovered the identity of the source through online searches.
“To describe what has happened as unusual would be an understatement but at the end of the day ... my role as a trial judge is to resolve this dispute justly and according to law," he said.
The judge questioned why the ABC had even dropped the defence in the first place before sending out a "self-congratulatory" press release regarding the development.
“We wanted the opportunity to defend our journalism in court, however a greater principle is now at stake – our ethical responsibility to honour the promise protecting the name of our source," ABC news director Justin Stevens said on Wednesday.
The judge also questioned redacted material given to Mr Russell's legal team, including photos in which Josh's face was visible but others were blurred out, which the ABC argued was necessary to prevent his identity being revealed.
“Given you've told the world where he’s served, this is developing into a bit of a farce," Justice Lee told the new agency's barrister Nicholas Owens SC.
Information previously disclosed about Josh included that he was a US marine from Stockton, California who was deployed in Afghanistan in May 2012, responded to a Taliban attack on Camp Bastion while Prince Harry was there in September 2012, left the Marine Corps in October 2015 and was awarded five air medals.
His photograph was also included in the October and November 2018 articles sued over by Mr Russell who is seeking aggravated damages.
"This is a highly unusual case given the amount of information that has already been disclosed by the ABC concerning the identity of the source," said Justice Lee.
Journalist Mark Willacy who spoke with Josh and agreed to keep his identity confidential will give evidence at a trial starting on July 28.
Mr Russell's barrister Sue Chrysanthou SC said it was "illogical" and "absurd" that the defence had been dropped to protect Josh's identity, arguing it had been hopeless even back in October last year when it was filed.
Both the public interest defence and a truth defence already thrown out by the Federal Court would have revealed Josh's true identity during trial, she told the court.
"In those circumstances, no respondent or lawyer could have understood that Mr Willacy could keep what he claims is this promise to Josh," Ms Chrysanthou said.
Mr Owens cautioned Mr Russell and his legal team about grilling Willacy over Josh's details.
"There is going to be a problem if that question is asked," he said.
The journalist would not break his promise and Mr Russell risked an emergency appeal which could derail the trial if he pressed this issue, the court heard.
Justice Lee ruled in February that 10 defamatory imputations alleged by Mr Russell were found within the 2018 articles but tossed the majority of his case, rejecting claims a further 31 imputations were also within the articles.
The allegedly defamatory reports include that the ex-soldier was under investigation for his conduct in Afghanistan in mid-2012 where he left “fire and bodies" in his wake.
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