Financiers seek to narrow Roberts-Smith costs claim
Financial backers of Ben Roberts-Smith’s failed defamation action have been given further time to respond to subpoenas, as the disgraced soldier appeals the court’s judgment.
The matter returned to the Federal Court on Friday after Justice Anthony Besanko dismissed Roberts-Smith’s lawsuits in June, finding reports in The Sydney Morning Herald, The Age and The Canberra Times alleging he engaged in war crimes while deployed with the SAS in Afghanistan were substantially true.
The reports included alleging his involvement in the unlawful murder of four unarmed prisoners.
Roberts-Smith has appealed, arguing the judge’s findings were improbable, speculative and based on unreliable witnesses.
His lawsuits were funded partially by the Seven Network he worked for, and its billionaire chairman Kerry Stokes’ company Australian Capital Equity (ACE) on a loan agreement.
Subpoenas have been issued to Seven, ACE, Stokes, Seven commercial director Bruce McWilliam and law firm Herbert Smith Freehills.
Neil Young KC, representing those respondents, has applied for elements of the subpoenas to be set aside.
There had been discussion about narrowing the scope of subpoenas, which had not reached a conclusion.
“So we don’t precisely know what the scope of the issue is that remains outstanding in respect of those subpoenas,” he told the court on Friday.
Young secured an adjournment to receive instructions in support of the application to set subpoenas aside.
Amended and marked-up copies of the subpoenas will be provided by the respondents on Friday.
Herbert Smith Freehills had nothing to produce in response to the subpoenas, the court heard.
One envelope was handed up from ACE.
Lawyers for Seven and ACE previously argued the sought documents would only show how much time lawyers spent in hearings, not that they had any control over how Roberts-Smith ran the lawsuits.
Addisons law firm partner Justine Munsie handed up documents in relation to an older subpoena.
Media law firm Mark O’Brien Legal has similarly sought to have subpoenas narrowed down or set aside, and those applications will be heard alongside Young’s applications next Thursday.
Lyndelle Barnett, acting for the newspapers, unsuccessfully sought to have the applications heard on Friday.
The media companies want the Victoria Cross recipient to pay their defence costs, assessed on an indemnity basis, orders typically granted in lawsuits that are frivolous, hopeless or doomed to fail.
Roberts-Smith has already agreed to cover the legal bills as well as paying additional indemnity costs after March 17, 2020 when the media companies offered to resolve the proceedings, but is resisting paying for indemnity costs before that date.
Legal costs for both sides are expected to exceed $25 million.
A report into alleged war crimes by special forces in Afghanistan was released in November 2020 finding credible evidence 39 civilians and prisoners were unlawfully killed by Australian troops while two others were subject to cruelty from 2007 to 2013.
Roberts-Smith has not been charged and maintains his innocence.
