Ben Roberts-Smith defamation trial: Seven, Kerry Stokes allowed to challenge subpoenas

Ben Roberts-Smith’s financial supporters at the Seven Network, including billionaire Kerry Stokes, will go ahead with challenging an order to hand over thousands of documents showing their level of involvement in the soldier’s failed defamation trial.

Earlier this year, Federal Court Justice Anthony Besanko ruled some of the imputations against Mr Roberts-Smith put forward across six articles by The Sydney Morning Herald, The Age and The Canberra Times were substantially true and dismissed the case.

The newspapers had accused Mr Roberts-Smith of war crimes, with the case expecting to have cost more than $25m in legal fees.

In July, Justice Besanko rejected a bid by Seven West Media chairman Mr Stokes, his private company Australian Capital Equity (ACE), Seven Network commercial director Bruce McWilliam and law firms Herbert Smith Freehills and Mark O’Brien Legal to have subpoenas set aside.

The decision was challenged before Justice Nye Perram on Friday, with Seven wanting to overturn the ruling to hand over the document as there could be “commercial harm in giving them to its direct competitor”.

Justice Perram on Monday ruled in favour of Seven and ordered the application for leave to appeal is granted, meaning Seven can go ahead with challenging the production of documents.

It comes after Justin Williams SC, representing Seven, Mr Stokes and Mr McWilliam, told the court handing over the documents would “constitute a very significant intrusion” into the company’s “confidential” affairs.

The trial was funded at first by the Seven Network, which was Mr Roberts-Smith’s employer at the time, before a loan agreement was reached with Mr Stokes’ private company ACE.

Subpoenas were issued to all parties by Nine Newspapers to show communications between the financial backers and the lawyers to show their involvement in the trial and if they controlled the litigation.

Nine is looking to view documents, including emails and text messages, between the Seven parties and Mr Roberts-Smith as well as his lawyers.

Mr Williams on Friday told the Federal Court the subpoenas were “simply catching all communications between my clients and representatives of Mr Roberts-Smith”.

He conceded the soldier’s “sole source” of the funds was one of his clients, but none of the subpoenas “go to those issues”.

“And again, there’s no issue that Mr Roberts-Smith was presented invoices which were paid by my clients and debited to his loan accounts,” he said.

Mr Williams told the court an “appropriately framed subpoena” would be maintainable and legitimate, but he claimed lawyers for Nine Newspapers had “avoided every turn” in taking that course.

He argued his clients and the respondents were “rival media companies” and there was potential for documents included in the subpoena to be of “interest in value” to Nine Newspapers.

“Maybe discussions of ratings … there is a risk of commercial harm from their disclosure,” he argued.

The court was previously told a search of Mr McWilliam’s Seven Network emails found more than 8650 emails between him and one or more of Mr Roberts-Smith’s lawyers between the beginning of the case in 2018 and 2023.

Nicholas Owens SC, on behalf of Nine Newspapers, proposed to the court a compromise where only lawyers would have access to the documents.

Judge Perram will publish his reasons at a later date.

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