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Ben Roberts-Smith’s key supporters at Seven West Media may resist handing over documents revealing their involvement in the former soldier’s failed defamation case, the Federal Court has heard, as the Nine-owned newspapers at the centre of the lawsuit pursue his backers for legal costs.

Justice Anthony Besanko was slated to hear an application on September 5 by The Sydney Morning Herald and The Age to recoup their legal costs in the case from Seven West Media chairman Kerry Stokes’ private company Australian Capital Equity (ACE) and potentially also the Seven Network.

The combined costs of the litigation are estimated at $25 million.

Seven West Media chairman Kerry Stokes (left) and Ben Roberts-Smith.Credit: Trevor Collens/ADF

On Friday, Besanko rescheduled the costs hearing to October 26 and 27 as he foreshadowed a likely dispute over access to documents. He said he would “sit extended hours if necessary in order to complete the matter” on those days.

As part of its application for a third-party costs order, Nine is seeking to show ACE and Seven controlled the litigation.

Besanko last month rejected a bid by Stokes, Seven Network commercial director Bruce McWilliam and others to set aside subpoenas from Nine requiring them to hand over documents, including emails and text messages, showing their communications with either or both Roberts-Smith and his lawyers about the defamation case.

The court has heard that a search of McWilliam’s Seven Network emails alone yielded 8650 emails between McWilliam and one or more of Roberts-Smith and his lawyers between 2018, when the case was filed, and 2023.

While Besanko did not set aside the subpoenas, he said at a hearing on Friday that claims for legal professional privilege over the documents “are likely to be raised, and challenges to those claims are likely to be made”. Legal professional privilege protects confidential communications between a lawyer and their client.

Matthew Richardson, SC, acting for Roberts-Smith, told the court that “I’m told that although considerable work has been done, the present understanding is it’s not possible that the privilege review will be finished by the 21st of August”.

While Stokes’ private company and Seven were not parties to the Roberts-Smith litigation, both were involved at different times in funding the former soldier’s defamation case under a loan agreement.

Seven Network, Roberts-Smith’s employer at the time, covered his legal fees under a loan agreement from 2018 before ACE took over the loan on June 24, 2020, and paid out his existing debt to Seven.

Roberts-Smith took leave from his position as general manager of Seven’s Queensland operations ahead of the defamation trial. He resigned on June 2, a day after Besanko dismissed his lawsuit against the Herald and The Age. Roberts-Smith has lodged an appeal against Besanko’s decision and is seeking to have his findings overturned.

The parties return to court on September 12 for a preliminary hearing in the costs dispute.

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