Key Points
- Ben Roberts-Smith has agreed to pay for the legal costs of media outlets he sued for defamation.
- The media outlets are also seeking third-party costs from Mr Roberts-Smith's financial backers, Seven Network and Kerry Stokes' Australian Capital Equity.
- The legal costs are estimated to be more than $25 million for both the former soldier and media companies.
The fallout from is continuing, with the former soldier agreeing to pay what could amount to millions of dollars in costs to newspapers he unsuccessfully sued in a case that gripped the nation.
On Thursday, Australia's most decorated living soldier agreed to pay costs to The Age, The Sydney Morning Herald and the Canberra Times, after defamation proceedings he brought against them were tossed out by a Federal Court judge earlier this month.
The media outlets are also seeking third-party costs from Mr Roberts-Smith's financial backers in the defamation suit, the Seven Network and billionaire Seven chair Kerry Stokes' private firm Australian Capital Equity.
After almost five years since the cases were filed and a 110-day hearing, the legal costs are estimated to be more than $25 million for both the former soldier and media companies.
The Victoria Cross recipient started legal action against the three newspapers, and journalists Nick McKenzie, Chris Masters, and David Wroe in January 2019, in response to a series of articles published in 2018 that claimed he had committed war crimes while serving in Afghanistan, including the unlawful killing of unarmed civilians and prisoners.
Federal Court Justice Anthony Besanko dismissed Mr Roberts-Smith's defamation case on 1 June after he found the newspapers had established "substantial truth" or "contextual truth" for many of the most serious allegations.
At a hearing in the Federal Court on Thursday, Mr Roberts-Smith agreed to pay the publishers' legal costs from the time the case first appeared in court in March 2020 on an indemnity basis.
Why are the Seven Network and Kerry Stokes' firm being pursued for costs?
The three publishers that successfully defended Mr Roberts-Smith's defamation cases over their war crimes reporting are seeking to hit Seven Network and its billionaire chair with their legal bills after it financially backed the former soldier.
The court was told on Thursday costs would be sought from Seven and Mr Stokes' private company Australian Capital Equity, which both entered into loan agreements with Mr Roberts-Smith to support his lawsuits.
Mr Roberts-Smith has until 12 July to file an appeal.
Representing the news organisations, barrister Nicholas Owens SC said his clients would chase costs from Seven and ACE.
The loan agreements with Mr Roberts-Smith included terms that Seven and ACE's lawyers could have "oversight and management" of the defamation lawsuits.
Seven loaned the war veteran funds until 23 June 2021 with ACE taking over the financial backing of the cases after that date.
Barrister Justin Williams SC, representing the two Stokes-backed firms, tried to set aside subpoenas issued to his clients seeking invoices regarding the times their lawyers attended court or discussed the defamation cases.
The documents sought could not be used to make a costs order because they did not show Seven or ACE directing or controlling the conduct of the lawsuits, Mr Williams said.
"All it indicates is that my clients were monitoring the proceedings and it's understandable why they wished to do so," he told the court.
Mr Owens disagreed, saying the court could infer the level of control from the number of times Seven's lawyers were in court when all other evidence regarding the broadcaster was considered.
Justice Besanko reserved his decision.
What happens next?
Mr Owens said his clients were also seeking indemnity costs from Mr Roberts-Smith for his "unreasonable, delinquent and dishonest" conduct in the proceedings and for suing over imputations he claimed were defamatory but which he knew to be true.
These orders are typically granted by the court in lawsuits that were frivolous, hopeless or doomed to fail.
The former SAS corporal has agreed he will have to pay indemnity costs after 17 March 2020. But he is fighting suggestions he be stuck with the bill from before that date.
A two-day hearing for the costs applications against Mr Roberts-Smith, Seven and ACE will start in the Federal Court on 4 September.
On that date, Justice Besanko will also hear a bid by the Commonwealth to let the Office of the Special Investigator access evidence used in the civil lawsuits in its criminal investigations over alleged war crimes in Afghanistan.
This would ensure prior orders made by the judge to protect national security would not "frustrate or impair" the conduct of the ongoing investigations, said commonwealth barrister Joe Edwards.
In November 2020, a report into alleged war crimes by special forces in Afghanistan was released finding credible evidence 39 civilians and prisoners were unlawfully killed by Australian troops while two others were subject to cruelty from 2007 to 2013.
Two years later, more than 40 alleged offences were under investigation.
Mr Roberts-Smith has not been charged and maintains his innocence.
Members of the Australian Defence Force can access the Defence All-hours Support Line on 1800 628 036. Open Arms provides free and confidential counselling and support for current and former serving ADF members and their families on 1800 011 046.
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