Ben Roberts-Smith has agreed to pay the legal costs of media outlets party to his failed defamation action, the federal court heard on Thursday.
The outlets are also seeking third-party cost orders against the Seven Network and Australian Capital Equity, Seven chair Kerry Stokes’s private company, which provided funds for Roberts-Smith’s case.
Roberts-Smith lost the defamation case against three newspapers and their reporters last month, with Justice Anthony Besanko finding, on the balance of probabilities, that Australia’s most highly decorated living soldier murdered unarmed civilians while serving in Afghanistan.
No further information was heard in court about the extent of the legal costs, but the combined costs are estimated to be in the tens of millions of dollars.
Roberts-Smith agreed to pay the media outlets’ legal costs on an indemnity basis dating back to 17 March 2020, but there was a dispute about whether he should also pay costs earlier than that.
The third-party cost orders were also disputed, as were subpoenas sought by the outlets that would require Seven, Ace and the law firms the companies used, Addisons and Herbert Smith Freehills, to hand over all relevant documents regarding the case.
Nicholas Owens SC, for the outlets, said the agreement between Ace and Roberts-Smith showed the basis for the subpoenas, despite barristers for the companies and law firms arguing that their communications regarding the case were irrelevant.
The agreement outlined the conditions of the loan from Stokes to Roberts-Smith and included reference to Seven’s lawyers overseeing the defamation case.
“There was an explicit contractual recognition … that a substantive involvement in terms of oversight and management of the defamation proceedings was something that was regarded as important,” Owens said.
Besanko reserved his decision regarding the subpoenas.
The commonwealth is also seeking access to evidence gathered during the defamation trial to use in ongoing war crimes investigations.
Besanko heard on Thursday that the commonwealth would make an application to view evidence that was otherwise protected on national security grounds.
Roberts-Smith opposed the application, but the media outlets did not.
Barrister Joe Edwards, for the commonwealth, said there was nothing unusual about a law enforcement agency accessing a court file, but the application on behalf of the Office of the Special Investigator was necessary because of the “quite strict rules” regarding the sharing of information before the court that was protected on national security grounds.
But he said it was necessary for those orders to be amended so they “don’t have the inadvertent effect of frustration or impairing the conduct of ongoing criminal investigations”.
Edwards said that solicitors for Roberts-Smith had raised “a number of concerns” about the amendments, but there was some hope they would be agreed to.
He said that if the application was contested it was possible he would have to rely on confidential evidence which would have to be given in a closed court, and that Roberts-Smith and his lawyers would not be able to hear this evidence.
The matter is set to return to court in September.
