An ex-commando defamed by the ABC will receive more than $400,000 despite giving false evidence in court, but he shouldn't expect an apology from the broadcaster.
A court heard on Tuesday the broadcaster would have been on the hook for less money if it had left it to the judge to determine payment of Heston Russell's legal bills after a defensive mindset within ABC Investigations led to his defamation.
The former army commando was defamed in reports alleging members of the platoon he led in Afghanistan executed a prisoner because the detainee would not fit on a helicopter.
The allegation came via a US marine, who heard a “pop” over the radio in mid-2012 followed by advice there would be six prisoners on board, not seven.
The claim was published in October 2020 and revived in November 2021, when the ABC reported the Department of Defence had confirmed a criminal investigation into the November platoon, which the department later disputed.
Facing a senate grilling on Tuesday, ABC managing director David Anderson said he was not going to say sorry despite the defamation loss and million-dollar bill for the taxpayer-funded organisation.
"If you're asking for me to apologise to Mr Russell, I'm not going to apologise to Mr Russell," he said.
"I am aware of what happens to our returned service women and men ... that doesn't prevent us from holding people to account or the defence force to account."
Federal Court Justice Michael Lee ruled earlier in October a defensive attitude within ABC Investigations caused it to publish the defamatory reports, which have now been removed.
"In fighting back against critics and seeking to justify its earlier story, those responsible within ABC Investigations did not do all they should have done prior to publishing the November article conveying, as it did, such serious allegations," he said in his judgment.
The matter returned to court on Tuesday, when a final payout figure of $412,315 was confirmed, accounting for interest on top of the $390,000 Mr Russell was awarded.
He will also have his legal costs paid, however Justice Lee said he would have made a different order to the one the broadcaster consented to after finding the former commando had given deliberately false evidence to the court.
"It is obvious, but worth remarking, that it is fundamental to the just resolution of disputes that a witness tells the truth," Justice Lee said.
It would have been contrary to the overarching purpose of the court to allow Mr Russell to recover the cost of legal practitioners and the court's time spent dealing with his false evidence.
However, it would also be an inappropriate use of discretion to reduce the amount he could recover in light of the broadcaster's expressed consent, Justice Lee said.
Mr Russell's solicitor sent an offer to ABC's lawyers offering to settle for $99,000 plus legal costs and the removal of the articles from publication in September 2022.
His costs will now be paid by the broadcaster on an ordinary basis up until the offer to settle, with indemnity costs thereafter.
Justice Lee said he had seen some speculation on figures around $2 million, requesting a schedule of costs incurred be provided as he assesses the figure himself.
Liberal senator Sarah Henderson said the litigation "has ended up costing several million dollars at least, of taxpayers money".
The ABC destroyed Mr Russell's reputation, which he had to fight to restore, and the broadcaster's reputation as a trusted news source had been undermined in the process, she said during senate estimates.
Mr Anderson said between $700,000 and $800,000 had been spent defending the lawsuit.
