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The Seven Network and a private company owned by media magnate Kerry Stokes will have to hand over their lawyers’ invoices related to the failed defamation suit brought by war veteran Ben Roberts-Smith, in a significant setback to their claim that they should not have to bear the costs of those proceedings.
Roberts-Smith, a decorated former soldier and employee of Seven, sued The Age, The Sydney Morning Herald and The Canberra Times over six stories that alleged he was a murderer, war criminal, bully and domestic abuser. Justice Anthony Besanko found last month that all those descriptions, except the allegation of domestic violence, were proven to be true.
Kerry Stokes bankrolled Ben Roberts-Smith’s failed defamation action, but is arguing that he should not pay the winning party’s costs.Credit: Trevor Collens
Nine, which owns The Age and the Herald, is arguing that the Seven Network (Operations) Ltd and Stokes’s private company, Australian Capital Equity (ACE), should pay the costs of the defamation trial, which they bankrolled for Roberts-Smith under a loan agreement.
Seven’s commercial director Bruce McWilliam attended the trial in person on at least 12 occasions and via the online stream on at least 71 occasions, according to documents tendered to the Federal Court.
Roberts-Smith has agreed to pay Nine’s costs, and to pay a greater proportion of the costs incurred after March 17, 2020, when he knocked back the newspapers’ offer to settle. However, he may yet lodge an appeal against the judgment, and has until next Thursday to do so.
Shortly after the Federal Court heard that Roberts-Smith had agreed to pay the costs on Thursday last week, he was filmed exiting the offices of a bankruptcy lawyer.
But Seven and ACE are resisting the notion that they should be forced to foot the bill.
Ben Roberts-Smith outside the offices of a bankruptcy lawyer last month.Credit: Nine
Nine subpoenaed the two companies and their lawyers, Herbert Smith Freehills, for records of attendance by their lawyers at the defamation trial.
It also subpoenaed communications between those entities and the law firm Addisons, which represented three of the witnesses called by Roberts-Smith, and whose bills were also paid by the Seven Network initially, and later ACE.
Seven and ACE also agreed to cover those witnesses’ legal costs in a war crimes inquiry by the Inspector-General of the Australian Defence Force.
Seven, ACE and Herbert Smith Freehills argued that those communications and the records of attendance by their lawyers in the defamation trial were irrelevant to whether they should pay the costs of the proceedings, and applied to have the subpoenas set aside.
But Besanko rejected those grounds in support of an order of setting aside the subpoenas. He also ordered that Seven, ACE, Herbert Smith Freehills and Addisons pay for the costs of their application to set aside the subpoenaed documents.
More to come.
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