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Former soldier Heston Russell's defamation case against the ABC is headed for trial once again, after a judge allowed the broadcaster to reinstate a public interest defence amid an argument about protecting the identity of a source.
- Earlier in the week the ABC said it would not reveal sources, indicating it would drop its defence of the case
- On Friday, the judge said Mr Russell's lawyers appeared to no longer need the name of the source
- He has allowed the ABC to reinstate a public interest defence
Mr Russell is suing the ABC and two journalists in the Federal Court over a story published on television, radio and online in 2021, claiming it implied he was involved in the death of an Afghan prisoner while a commando in Afghanistan.
The story included a denial of wrongdoing from Mr Russell, who was the commander of the November Platoon from 2011 to 2012.
He sued on the basis of the material being read together with previous reporting which contained allegations from a US marine given the pseudonym "Josh" about the death of an Afghan prisoner.
The ABC on Wednesday indicated it would drop a defence of public interest, after a court order required the broadcaster to hand over documents including the unredacted identity of "Josh".
Barrister Lyndelle Barnett said the ABC would not comply with the order as her client took promises to protect sources "very seriously".
But on Friday, the court heard Mr Russell's lawyers may know who the source is, constituting a "material change in circumstances" that prompted the broadcaster to ask the judge to vacate his previous orders.
Nicholas Owens SC, for the ABC, said his client remained "eager" to have a substantive ruling on its public interest defence.
But he said journalist Mark Willacy, one of the respondents, would not be breaching his promise to the source if asked to do so during a trial.
"He's an ethical journalist … he's made a promise to someone and he's going to keep it," he said.
Justice Michael Lee said the veteran's lawyers appeared to no longer need the name of the source to properly prepare for the trial.
But he said the case was "highly unusual" due to the amount of information already disclosed by the ABC concerning the person's identity.
"I am no longer satisfied it is necessary for the ABC to be compelled to provide information as to the source in order to allow the trial to be conducted fairly with respect to Mr Russell," Justice Lee said.
"In those circumstances, it is appropriate to vacate the order I made in different factual circumstances that prevailed, prior to evidence being received that the name of the source is known to those advising Mr Russell."
The judge said to describe what occurred 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 told the court.
The veteran's barrister, Sue Chrysanthou SC, earlier accused the broadcaster of going on "a disgraceful publicity campaign" following Wednesday's developments, when a statement was issued by director of ABC News Justin Stevens.
She told the judge her team had "wasted an entire week of … precious preparation".
"The public interest defence is so hopeless it should never have been pleaded," she said.
Ms Chysanthou also questioned whether redactions in the ABC's documents extended beyond the identity of "Josh", pointing to a photograph of a group of soldiers whose identities had also been redacted.
Mr Owens said that information might be used to identify the source.
"Given you've told the world where he served, this is developing into a bit of a farce," Justice Lee said.
In February, Justice Lee ruled the articles conveyed 10 defamatory meanings, including that Mr Russell was "involved in shooting and killing an Afghan prisoner during an operation in Helmand province in mid-2012".
The judge also ruled it conveyed the imputation that he was "the subject of an active criminal investigation by the relevant investigatory defence authority into his conduct as a commando in Afghanistan in June or July 2012".