Ben Roberts-Smith's defamation trial against three newspapers is unlikely to resume in November due to COVID-19 disruption and could be moved to Adelaide, a court has heard.
Mr Roberts-Smith's high-profile lawsuit against the The Age, The Sydney Morning Herald and The Canberra Times was halted in August and slated to resume on November 1, but a case management hearing on Friday was told a resumption on that date was now unlikely.
"It's very unlikely that the trial will resume on the first of November," Justice Anthony Besanko told the Federal Court on Friday.
In a brief hearing, the war hero's barrister, Arthur Moses SC, indicated the applicant would seek to have the trial relocated from Sydney to South Australia.
"We say South Australia Your Honour because we say the arrangement that can be made for witnesses to travel to that state will have the minimum ramifications on those individuals," Mr Moses said.
He urged Justice Besanko to find a solution to the "bedevilled" trial that could finish it, cautioning that otherwise "it truly will be like Waiting for Godot for this thing to finish".
"When these proceedings commenced in 2018 they related to dated incidents in Afghanistan where at that time in 2018 Afghanistan was governed by a democratically elected government and the like, now we have the Taliban in control," he said.
"The proceedings are still going, they have to be brought to an end one way or another."
Barrister Nicholas Owens SC, for the respondents, submitted that a new date of February 28 2022 should be made to resume the trial given difficulties with availability of witnesses from Western Australia flowing from COVID-19 border restrictions in that state.
Mr Owens said through "no fault of anybody" it was not possible for his side to call the witnesses at the moment.
"Despite what we all want, which is for the trial to resume as soon as possible, it can't happen ... certainty in this context is chimerical," he told the court.
The barrister said while moving the trial to Adelaide would currently free up WA-based witnesses to attend, it would take eight to 12 weeks for the Commonwealth to relocate the hearing, meaning the trial still wouldn't be able to restart until February at the earliest.
"The question then is what will Western Australia's border look like with South Australia at that point in time ... things change," he said.
Commonwealth lawyer Kristina Stern SC said that the time to relocate the trial would likely be at the "upper end" of the eight to 12 week estimate due to COVID-19 restrictions in place on movement in and out of the ACT.
Mr Roberts-Smith, 42, is suing the news outlets over articles from 2018 that he says paint him as a criminal who broke the moral and legal rules of military engagement during his deployments in Afghanistan with the SAS.
The former SAS corporal denies all allegations against him while the newspapers are running a truth defence.
The trial has so far heard evidence from the applicant, former Liberal politician Brendan Nelson and several Afghan villagers, but is awaiting testimony from current and former SAS soldiers, federal MP Andrew Hastie, and the VC recipient's ex-wife Emma Roberts.
Justice Besanko adjourned the matter to 15 October.
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