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Ben Roberts-Smith’s key supporters at Seven West Media, including billionaire Kerry Stokes, are attempting to overturn a court decision forcing them to hand over documents showing their involvement in the former soldier’s failed defamation case against Nine-owned newspapers.

The Federal Court on Friday heard that Seven West Media chairman Stokes, Seven Network commercial director Bruce McWilliam and others are seeking leave to appeal against a decision by Justice Anthony Besanko requiring them to reveal to Nine their communications with either or both Roberts-Smith and his lawyers about the defamation case.

Seven West Media chairman Kerry Stokes is one of Ben Roberts-Smith’s key supporters.Credit: Trevor Collens

Roberts-Smith’s employer at the time, Seven Network, funded the former Special Air Service soldier’s case against The Sydney Morning Herald and The Age under a loan agreement from 2018, before Stokes’ private company Australian Capital Equity (ACE) took over the loan on June 24, 2020, and paid out his existing debt to Seven.

Nine, the owner of the mastheads, is ultimately seeking a court order forcing ACE, and potentially also the Seven Network, to pay the costs of the defamation litigation. The combined costs are estimated at $25 million.

As part of its application for a third-party costs order, Nine is seeking to show ACE and Seven controlled the litigation. Nine wants to view documents, including emails and text messages, between the Seven parties and Roberts-Smith and his lawyers.

Seven employed Roberts-Smith 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 Besanko dismissed his lawsuit against the Herald and The Age. Roberts-Smith has lodged an appeal against that decision and is seeking to have his findings overturned.

Ben Roberts-Smith’s lawsuit against the Herald and The Age was dismissed in the Federal Court.Credit: Ross Swanborough/SMH

Justin Williams, SC, for the Seven parties including Stokes and McWilliam, said at a hearing in the Federal Court on Friday that “earlier this week my clients filed an application for leave to appeal [the] … judgment dismissing their application to set aside the subpoenas that had been issued to them” by Nine.

The Seven parties asked Besanko to suspend orders requiring the production of documents at specific intervals ahead of the final costs hearing on October 26 and 27.

“Any appeal would be rendered futile or nugatory if production was required under the subpoenas prior to its determination,” Williams said.

Besanko said on Friday he would “grant suspension of the relevant orders for a period of two weeks” and hold a further preliminary hearing in a fortnight to consider what should happen next.

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.

Besanko had previously foreshadowed that claims for legal professional privilege over the subpoenaed documents were “likely to be raised, and challenges to those claims are likely to be made” before the final costs hearing. Legal professional privilege protects confidential communications between a lawyer and their client.

The court heard on Friday that Seven’s solicitors, Herbert Smith Freehills, asked Besanko in a letter on August 14 if he might make two “corrections” to his written judgment about the subpoenas.

“The letter reveals a misapprehension on somebody’s part as to the circumstances in which ‘corrections’ to published reasons will be issued,” Besanko said.

“There are said to be two factual inaccuracies [in the judgment], and in what in my experience is a most unusual request, Herbert Smith Freehills have asked me to correct them. I decline to do so.

“First, I do not accept they are inaccuracies. Secondly, and in any event, neither matter would fall within the very, very limited circumstances in which a judge would issue corrections to his or her published reasons.”

The parties return to court for a further preliminary hearing on September 1.

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