Seven West Media’s chairman, Kerry Stokes, has agreed to pay the costs of Ben Roberts-Smith’s failed defamation action, in a move that will prevent the network from having to hand over thousands of internal documents about the case.
The federal court heard on Monday that Stokes had agreed to pay the costs of the case. Justice Anthony Besanko ordered that Stokes’ private company Australian Capital Equity (ACE) pay them on an indemnity basis.
The order does not state how much Stokes will have to pay, but the total costs of the proceeding are believed to be up to $35m.
In June, Roberts-Smith, a recipient of the Victoria Cross, failed in his defamation case against three newspapers that he alleged defamed him as a war criminal.
Besanko found the newspapers successfully proved – to the civil standard of the balance of probabilities – that Roberts-Smith was complicit in the murder of four unarmed civilians while serving in the SAS in Afghanistan, as well as bullying and threatening colleagues, and intimidating a woman with whom he was having an affair.
Roberts-Smith, who has consistently denied all wrongdoing, has appealed that decision.
Stokes, his commercial director, Bruce McWilliam, and Roberts-Smith lost an appeal on 30 November against a ruling that they had to hand over internal correspondence related to the case.
The newspapers subpoenaed documents and correspondence sent between Stokes, McWilliam, law firms representing Seven and lawyers for Roberts-Smith.
The newspapers – The Age, Sydney Morning Herald, and Canberra Times – argued Seven exerted a measure of control over the defamation proceedings and should therefore be liable for costs, but sought the documents in order to prove this.
Federal court justices Michael Wheelahan, Stewart Anderson and Ian Jackman dismissed all five grounds of appeal raised by the Seven parties, three of which had been repeated by the Roberts-Smith parties.
Seven Network, Seven West Media, Stokes’ private company Australian Capital Equity (ACE), and Mark O’Brien Legal, the firm which represented Roberts-Smith, had also appealed against the ruling.
Lawyers for the newspapers said earlier this year that more than 8,600 emails were exchanged between Seven’s commercial director, McWilliam, and Roberts-Smith’s legal team during the course of the trial, demonstrating a clear interest and influence.
In 2015, Roberts-Smith was appointed general manager of Seven Queensland, a role he resigned from after the verdict was handed down in his defamation case.
The ex-soldier had stood aside from his job in 2021 to focus on the trial.
Stokes had backed Roberts-Smith financially and publicly, insisting his employee was innocent as recently as last year.
At Seven West Media’s annual general meeting, Stokes said: “Ben Roberts-Smith is innocent and deserves legal representation and that scumbag journalists should be held to account. And quote me on that.”
Another hearing in the case has been scheduled for Tuesday.
