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Gina Rinehart’s lawyers say there are no documents in her possession showing any correspondence between her and Ben Roberts-Smith over funding for his failed defamation appeal, as the media companies at the centre of the lawsuit pursue him for $2.4 million in legal costs.
The publishing companies behind The Age and The Sydney Morning Herald – the targets of Roberts-Smith’s multimillion-dollar defamation case – told the Federal Court on Wednesday that a subpoena issued to Rinehart earlier this year was “no longer pressed”. It closes the door on a bid by the Nine-owned media outlets to reveal if Roberts-Smith had a wealthy backer.
The Age and The Sydney Morning Herald had sought to establish if Gina Rinehart covered the costs of Ben Roberts-Smith’s failed defamation appeal.Credit: Matthew Absalom-Wong
The media companies had served a subpoena on Australia’s richest woman, requiring her and her companies to hand over any documents recording or evidencing any payment to Roberts-Smith for his appeal, or revealing any funding agreement between them.
The news companies also sought any correspondence between the pair about the conduct or progress of his appeal.
Rinehart has publicly expressed her support for the former soldier 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.
On Wednesday, MinterEllison lawyer Tess McGuire, acting for the media companies, told the Federal Court that they had received correspondence from Rinehart’s lawyers on Tuesday indicating that there were no documents to produce in response to the subpoena.
“From what I understand, the correspondence states that the subpoena recipient [Rinehart] confirms that they do not have any documents in their possession or control which are responsive to any of the categories of the subpoena,” McGuire said.
“On that basis, the [media] respondents do not seek further orders in relation to this matter.”
McGuire agreed that the subpoena was no longer pressed.
Roberts-Smith on hook for millions
The newspapers are seeking to recover about $2.4 million in legal costs they incurred in defending Roberts-Smith’s failed defamation appeal.
This is lower than the figure actually incurred by the media outlets and reflects orders by the Full Court of the Federal Court allowing for their costs to be recovered against Roberts-Smith on the ordinary basis, which covers about 70 per cent of their bills.
Roberts-Smith had already paid $910,000 into court as security for Nine’s legal costs as a condition of bringing the appeal, so those costs can be recovered. The source of those funds is unknown.
That leaves a further $1.5 million to be paid. Roberts-Smith’s capacity to cover the appeal costs is unclear.
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While no steps have been taken to date, in some cases a successful litigant initiates bankruptcy proceedings against their opponent if a costs order in their favour is not met.
Roberts-Smith, a former Special Air Service corporal, reached the end of the line last month 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 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. In his decision 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. Besanko also found Roberts-Smith had bullied a fellow soldier.
The war veteran’s unsuccessful 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 now in focus.
Kerry Stokes’ massive bill
Roberts-Smith has enjoyed the support of a wealthy friend. His former boss, Seven West Media chairman Kerry Stokes, bankrolled the defamation trial using private funds, but did not pay for the appeal.
In orders made by a Federal Court last month, the court said the newspapers’ costs of the defamation trial payable by Roberts-Smith and Stokes’ private company, Australian Capital Equity, would be fixed at $13.3 million.
Stokes and the former soldier 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.
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