Gina Rinehart, Ben Roberts-Smith and the legal bills mystery

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Did Australia’s richest person bankroll Ben Roberts-Smith’s failed defamation appeal? That’s the question media outlets at the centre of his multimillion-dollar lawsuit are seeking to answer – but billionaire Gina Rinehart has proved tricky to track down.

The former Special Air Service corporal reached the end of the line on Thursday, when the High Court refused an application for special leave to appeal against his damning defamation loss, after seven years of litigation and tens of millions of dollars in legal costs.

The Age and The Sydney Morning Herald are seeking to establish if Gina Rinehart covered the costs of Ben Roberts-Smith’s failed defamation appeal.

Roberts-Smith, a Victoria Cross recipient, launched the defamation case against The Age and The Sydney Morning Herald in 2018, alleging the newspapers defamed him in a series of articles alleging he was a war criminal and a bully.

The trial started in 2021 and concluded in July 2022 after 110 days, 41 witnesses and a combined $30 million in legal costs. An appeal to the Full Court of the Federal Court, which required more than a dozen hearing days and concluded this year, cost the parties a further $5 million. It is those costs that are in focus.

Roberts-Smith has been ordered to pay The Age and the Herald’s legal costs of the Full Court appeal on the ordinary basis, which covers about 70 per cent of their bills.

But Roberts-Smith’s capacity to cover those costs is unclear. Assuming he did have a backer with deep pockets, they would be in a better position to pay up, but the court would need to make a third-party costs order. This is not a fait accompli.

Subpoena issued to Rinehart

The Nine-owned media outlets have served a subpoena to produce documents on Rinehart, who has publicly expressed her support for Roberts-Smith and decried the “relentless attack” on him.

“Many patriotic Australians query, is it fair that this brave and patriotic man who risked his life on overseas missions which he was sent on by our government is under such attack,” Rinehart said in a statement this year.

When asked by The Australian Financial Review, also owned by Nine, whether she had funded the appeal, Rinehart did not respond.

Ben Roberts-Smith outside the Federal Court in May.

The subpoena is seeking, among other things, a copy of “any document that records or evidences any payment” by Rinehart, or a company in which she has a controlling or significant interest, to Roberts-Smith between June 1, 2023, and July 22 this year “for the purposes of providing funds to be used to pay … [Roberts-Smith’s] legal costs in this proceeding”.

The media outlets are also seeking a copy of any document revealing an “agreement or understanding” between Rinehart and Roberts-Smith relating to the payment of, or the liability for the payment of, his legal costs in the appeal, and any correspondence between them “regarding the conduct and/or progress of this proceeding”.

The media outlets were unable to track down Rinehart to serve the subpoena on her personally. On August 28, the Federal Court made orders dispensing with the requirement to serve her personally and allowing service to be effected via other means, including post and email.

The orders say the subpoena would be “deemed to be served on Mrs Rinehart 7 days after” all of those methods of bringing the subpoena to her attention had been deployed. It is understood those steps were taken last week.

Seven West Media chairman Kerry Stokes bankrolled the trial, but not the appeal.

Ex-soldier’s powerful friends

Roberts-Smith has enjoyed the support of wealthy friends. His former boss, Seven West Media chairman Kerry Stokes, bankrolled the defamation trial using private funds but did not pay for the appeal.

Stokes is on the hook for Nine’s costs in the trial, estimated at $13.4 million, on the higher-than-usual indemnity basis, which covers about 95 per cent of a party’s legal bills. He agreed to this after a protracted fight over internal Seven communications, dispensing with the need for a third-party costs order.

In 2023, then-Federal Court judge Anthony Besanko upheld the newspapers’ truth defence and found to the civil standard of proof that Roberts-Smith was complicit in the murder of four unarmed prisoners, including a man with a prosthetic leg, while deployed in Afghanistan between 2009 and 2012.

Roberts-Smith lodged an appeal. He has already paid $910,000 into court as security for Nine’s legal costs as a condition of bringing the appeal to the Full Court, so those costs can be recovered. The source of those funds is unknown.

The Full Court – Justices Nye Perram, Anna Katzmann and Geoffrey Kennett – said in a decision in May that the evidence was sufficiently cogent to support Besanko’s findings that Roberts-Smith murdered four Afghan men, contrary to the rules of engagement that bound the SAS.

The High Court refused special leave to appeal against the Full Court decision on Thursday and ordered the former soldier to pay the newspapers’ legal costs of the final chapter of the legal saga.

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