Seven West Media loses fight against the release of executives’ emails

Thousands of emails between Seven West Media executives and disgraced former SAS corporal Ben Roberts-Smith’s legal team will be released to Nine after the Federal Court dismissed an appeal by Seven against the emails’ release.

Seven West Media chairman Kerry Stokes’ private company, Australian Capital Equity, funded Roberts-Smith’s failed multimillion-dollar defamation case against The Sydney Morning Herald, The Age and The Canberra Times through a loan agreement with the former soldier.

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

Last month, Federal Court judge Nye Perram described some of the emails as containing “personally embarrassing” content, while Seven lawyers warned their release could cause the company “commercial harm in giving them to its direct competitor”.

Nine Publishing, the owner of this masthead, sought the documents as part of its fight to prove ACE and Seven controlled the litigation. It sought documents, including personal emails, from Seven West Media commercial director Bruce McWilliam, Stokes, ACE, and Roberts-Smith’s legal team showing their communications about the case.

The Federal Court has previously heard that Seven Network’s commercial director, Bruce McWilliam, exchanged more than 8600 emails with Roberts-Smith’s team during the former soldier’s failed defamation case.

Nine also sought file notes, written correspondence, text messages and messages sent over encrypted messaging services, including WhatsApp, Signal and Telegram, between the executives and Roberts-Smith, and Roberts-Smith’s lawyers, relating to the case.

Justice Anthony Besanko found this year that 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 Special Air Service corporal had bullied a fellow soldier.

Roberts-Smith denies all wrongdoing and is appealing against the decision. The full court of the Federal Court will hear his appeal in February.

On Thursday, Justice Ian Jackman, on behalf of the full bench, dismissed Seven West Media’s appeal and ordered it to pay Nine’s costs.

In a written judgment, Jackman found the documents had “an apparent relevance”, and “could possibly throw light on the issues which arise on the application for orders for the payment of costs” to Nine.

He added that it was “on the cards” that the documents would do so.

Seven had sought to argue that Nine’s application for the documents was “broad and unlimited”, the judges found, and “likely to call for documents pertaining to trivial matters, or matters of routine administration”.

They rejected this criticism.

“Some may be centrally relevant, others peripherally relevant, while others may appear to be of negligible relevance when considered as individual documents,” the judges found.

“In the present case the respondents accepted that many of the documents may contain only ‘glancing references’ to the relevant subject matter. However, there may well be probative significance in the volume of such communications, even if certain individual communications might appear to be relatively trivial.”

The matter will return in coming weeks before Besanko, who will set a timetable of release.

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