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Ben Roberts-Smith’s chief financial backer, Seven West Media chairman Kerry Stokes, is facing a $13.5 million bill to cover legal costs incurred by The Age and The Sydney Morning Herald in defending his failed defamation case.
In orders made by a Federal Court registrar on Tuesday, the court said the newspapers’ costs of the defamation trial payable by the former Special Air Service corporal and Stokes’ private company, Australian Capital Equity, would be fixed at $13.3 million.
Ben Roberts-Smith (left) and Kerry Stokes.Credit: Michael Howard
Stokes and Roberts-Smith are also on the hook for almost $225,000 in costs associated with the assessment process itself, bringing the total bill to $13.5 million.
Stokes bankrolled the defamation trial using private funds, including an estimated $15 million in costs for Roberts-Smith’s own legal team. He did not pay for the appeal.
After Roberts-Smith’s case was dismissed by then-Federal Court judge Anthony Besanko, Stokes agreed to pay the newspapers’ legal costs associated with the trial on the higher-than-usual indemnity basis, which covers about 95 per cent of a party’s legal bills. Their total costs were estimated at $15 million.
Stokes’ agreement followed a protracted fight with the Nine-owned newspapers over internal Seven communications.
Roberts-Smith, a Victoria Cross recipient, launched the defamation case against The Age and the 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.
In his decision in 2023, 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. He also found he had bullied a fellow soldier.
Roberts-Smith lodged an appeal. 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.
Roberts-Smith was ordered by the Full Court to pay the newspapers’ costs of the appeal on the ordinary basis, which covers about 70 per cent of their bills.
Roberts-Smith’s capacity to cover the appeal costs is unclear.
The Age and the Herald have served a subpoena to produce documents on Australia’s richest woman, Gina Rinehart, who has publicly expressed her support for Roberts-Smith and decried the “relentless attack” on him, to ascertain if she bankrolled his appeal.
When asked by The Australian Financial Review, also owned by Nine, whether she had funded the appeal, Rinehart did not respond.
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 the appeal.
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.
Roberts-Smith 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 assessment of the multimillion-dollar costs payable by Stokes comes after the High Court refused Roberts-Smith’s application for special leave to appeal against the Full Court’s decision. This marked the end of his defamation case against the newspapers, and left the former soldier with yet another costs order against him.
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