Seven West Media’s chairman, Kerry Stokes, has failed to overturn a court ruling that he hand over thousands of emails exchanged with Ben Roberts-Smith’s legal team and other documents relating to the soldier’s failed defamation action.
Stokes, his commercial director, Bruce McWilliam, and Roberts-Smith had appealed July’s federal court ruling. But the full federal court ruled on Thursday morning that the appeal should be dismissed, with costs to be paid to the media companies who sought the documents.
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.
Justice Anthony Besanko found the newspapers successfully proved – to the civil standard of 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.
Thursday’s judgment relates to the costs of that year-long defamation trial, believed to be up to $35m.
The newspapers subpoenaed documents and correspondence sent between Stokes, McWilliam, law firms representing Seven and lawyers for Roberts-Smith. The newspapers, owned by the Nine media group, are arguing Seven exerted a measure of control over the defamation proceedings and should therefore be liable for costs.
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.
The parties submitted that the primary judge erred in several ways, including by using the words “could possibly throw light on the issues which arise” to describe the documents requested in the subpoena, and allowing them to relate to matters “referred to or related to” the proceedings.
It was also submitted it was incorrect for the primary judge to find it was “on the cards” that the documents sought by the subpoenas “will shed significant light on the connection between” Roberts-Smith, Seven and ACE, including by revealing negotiations on the terms under which Stokes or McWilliam agreed to fund the proceedings.
It was also argued the judge erred by incorrectly referencing an agreement Roberts-Smith had to pay ACE, in the event the defamation claim was successful, “an additional payment equal to 15% of the proceeds that exceed the amount owing on the loan balance”.
According to the judges’ written reasons, the subpoenas which the Seven and Roberts-Smith parties will now have to comply are wide-ranging and include messages exchanged using encrypted apps, minutes of board meetings, emails and loan agreements.
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.
