Ben Roberts-Smith’s financial supporters at the Seven Network, including billionaire Kerry Stokes, have told a court they should not have to hand over thousands of documents showing their level of involvement in the soldier’s failed defamation trial because there could be “commercial harm” in giving them to its direct competitor.
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 is being challenged before Federal Court Judge Nye Perram, with Seven attempting to overturn the ruling to hand over the documents.
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.
Representing Seven, Mr Stokes and Mr McWilliam, Justin Williams SC on Friday told the Federal Court that the subpoenas were “simply catching all communications between my clients and representatives of Mr Roberts-Smith”.
“There may simply be one-way communications, reporting of the proceedings from the Roberts-Smith camp to my clients and the totality of these communications when coupled with essentially acquiescence or silence, when actioned on the part of my clients, would itself be something relevant to the third party cost application,” Mr Williams said.
“We simply put, that’s a startling proposition.”
Mr Williams conceded that 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.
He 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.
Mr Williams argued that 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, told the court that his clients “expressly dispute” the suggestion the subpoenas would pick up communications that are “not relevant to oversight and management”.
“We say that it is necessary to look at the whole of the dealings between what I call the Roberts-Smith interests and the Seven interests in relation to the proceedings,” Mr Owens said.
Mr Owens said it was necessary to look at the “whole of the dealings between” Mr Roberts-Smith and the Seven Network in relation to the proceedings.
“But what is clear is that the payments are appropriately targeted, albeit that they produce a large volume of documents, but their category is properly targeted to our case as we frame it,” Mr Owens said.
He argued Mr William’s assertion of the injustice that could be raised was an “unsatisfactory basis”.
Mr Owens said if there was genuine commercial sensitivity, a limitation could be made to ensure only lawyers saw the material.
“If there’s a proper basis for it being commercially sensitive, and if it’s about ratings two years ago, it’s difficult to see how they would be in genuine ongoing sensitivity,” Mr Owens said.
“But let’s assume there is something, then there can be regimes put in place that make sure my clients don’t themselves get the benefit of access to it.”
Judge Perram will deliver his decision on Monday.