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The Seven Network’s commercial director exchanged more than 8600 emails with Ben Roberts-Smith’s team during the former soldier’s failed defamation case, the Federal Court has heard, as the newspapers sued by the former soldier seek access to the documents as part of a bid to pursue Seven for costs.
Seven West Media chairman Kerry Stokes bankrolled Roberts-Smith’s multimillion-dollar defamation suit against The Age, The Sydney Morning Herald and The Canberra Times via a loan provided by his private company, Australian Capital Equity (ACE).
Billionaire Kerry Stokes backed Ben Roberts-Smith.Credit: Philip Gostelow / Graham Tidy
Roberts-Smith was employed by the Seven Network as general manager of its Queensland operations. He took leave from his position ahead of the defamation trial and resigned on June 2, a day after Federal Court Justice Anthony Besanko dismissed his lawsuit.
Seven Network (Operations) Ltd had originally funded the former soldier’s case, but ACE took over Seven’s loan on June 24, 2020, and Stokes’ company paid out his existing debt.
Nine, owner of The Age and the Herald and former owner of The Canberra Times, is seeking a court order forcing Australian Capital Equity (ACE), and potentially also Seven, to pay the costs of the litigation. The combined costs are estimated at $25 million.
Bruce McWilliam outside court earlier this year.Credit: Janie Barrett
As part of its application, Nine is seeking to show ACE and Seven controlled the litigation. It has sought documents from Seven West Media commercial director Bruce McWilliam, Stokes, ACE, and Roberts-Smith’s legal team showing their communications about the case.
Those parties resisted providing those documents and Besanko will hand down a decision on the issue within days.
Nicholas Owens, SC, for the newspapers, told the Federal Court in Sydney on Thursday that there was “at the very least, we know, 8600 emails [exchanged with] … someone who’s not a party to the litigation”, McWilliam, and “the lawyers and the party [Roberts-Smith] himself”.
The emails were sent and received between June 2018, shortly before the case was filed in August that year, and June 2023.
“It’s obviously spread over a long period, but it’s a very, very large number of emails,” Owens said.
Owens argued that a third party might be regarded as playing an active role in litigation if they “are observing for the purpose of analysing [the case], and then communicating thoughts, suggestions, ideas, et cetera, across the barrier to the person who’s conducting the litigation”.
“The relevant question is: is there a causal impact between the conduct on the one hand and the incurring of the level of costs [in the litigation],” Owens said.
“Here we say that there was absolutely that. The very beginning of this process involved Channel Seven saying to Mr Roberts-Smith, we want to give you money so you can get lawyers that you wouldn’t otherwise have, and we want you to use [defamation solicitor] Mr Mark O’Brien.
“Right from the start, there was that level of involvement in the nature of the case and its prosecution. But going beyond that, we now see that there is very regular communication crossing the lines between the Seven/ACE camps and the people representing Mr Roberts-Smith.”
He said ACE was not just a lender but “a funder for profit” because it “stood to take 15 per cent, calculated in a particular way, of any successful recoveries” under the terms of the loan agreement.
“We will [also] be pointing to the involvement of Seven and ACE and its officers in the decision to commence the proceedings and the diligence that they undertook prior to the commencement of the proceedings,” Owens said.
Neil Young, KC, acting for Seven, ACE, Stokes and McWilliam, argued the subpoenas should be set aside because they were “far too wide”.
“It’s quite plain that they have no legitimate forensic purpose … and they are effectively undertaking a trawling exercise,” Young said. “They want to cast a dragnet.”
Young said the Nine parties’ suggestion that the 8640 emails were relevant to the issues in dispute was merely speculative.
“There is no strong presumption, as Mr Owens suggested, that that indicates something more than observation [of the case] was going on,” Young said. “There’s no reasonable ground identified for thinking that every communication by Mr McWilliam within those 8600 is … relevant.”
Roberts-Smith has lodged an appeal against Besanko’s decision and is seeking to have his findings overturned.
Besanko found the newspapers had proven to the civil standard – on the balance of probabilities – that Roberts-Smith was a war criminal who was complicit in the murder of four unarmed prisoners in Afghanistan. He also found the news outlets had proven the former SAS corporal had bullied a fellow soldier.
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