Costs stoush in Nine defamation battle with ben Roberts-Smith

Nine Entertainment has issued an extraordinary demand for legal costs on the eve of the defamation trial involving Victoria Cross recipient Ben Roberts-Smith.

Ben Roberts-Smith. Picture: Jonathan Ng

Nine Entertainment has issued an extraordinary demand for legal costs on the eve of the long-awaited defamation trial involving Victoria Cross recipient Ben Roberts-Smith, asking the private company owned by the Stokes family to cover any financial liabilities incurred by the former soldier’s court action.

Prominent Melbourne lawyer Peter Bartlett, a partner at MinterEllison and lead solicitor for Nine newspapers in the defamation trial, earlier this month wrote to Ryan Stokes, the chief executive of Australian Capital Equity, informing him that Nine would pursue his family’s private company for legal costs arising from any adverse finding against Mr Roberts-Smith, should the SAS veteran be unable to pay.

The letter, dated May 14, has prompted accusations that Nine is seeking to intimidate Mr Roberts-Smith into dropping his legal action, an act that could constitute contempt of court.

The Victoria Cross recipient is suing The Age and Sydney Morning Herald over reports that alleged he committed war crimes during deployments in Afghanistan, and punched his mistress in the face.

The former SAS soldier has denied the claims and is suing for aggravated damages.

Mr Roberts-Smith says the reports, which alleged bullying, intimidation and that he killed six Afghans outside of combat, portrayed him as a criminal.

In the letter, which was obtained by The Australian, Mr Bartlett tells Mr Stokes that a non-party costs order — where a successful defendant seeks costs from a third party who funds a plaintiff’s case — is justified because the Seven Network “has a significant non-financial interest in the outcome of the defamation proceeding as a commercial rival of the corporate respondent to the defamation proceeding”.

Mr Stokes and his family hold a 57.5 per cent stake in Seven Group Holdings, which also owns a controlling share of Seven West Media.

Mr Roberts-Smith is general manager of Seven’s Queensland operations, but in April it was announced that the would step down from that position for the duration of the defamation trial.

It has been previously reported that ACE — not Seven — has been privately funding Mr Roberts-Smith’s legal case to date, and an agreement is said to exist for the company to receive a 15 per cent share of any damages award that the former soldier might obtain.

But under Australian law, litigation funders aren’t liable for costs if their client loses — it is the liability of the client themselves.

The Australian has been told that Mr Bartlett’s letter prompted the exchange of a number of legal letters between Nine and ACE last week, in which Nine’s stated intention to pursue the Stokes family’s private company for legal costs if Mr Roberts-Smith loses was branded as contempt of court on the grounds that the move could be viewed as an attempt to bully the 42-year-old to drop the case.

A spokeswoman for Nine said: “This correspondence is a necessary step in the legal process and we are complying with that requirement to give notice of our intentions, nothing more.”

Mr Bartlett declined to comment.

A spokesman for ACE declined to comment.

Earlier this month, the Federal Court heard that Nine is yet to speak with a key witness in the Ben Roberts-Smith defamation trial, despite previously saying he would testify against the VC recipient.

On Thursday, the Federal Court was told that Mr Roberts-Smith had sent off a legal letter to his ex-wife Emma Roberts, who was expected to give evidence on his behalf but will now appear as a witness for the newspapers at his upcoming trial.

The trial is scheduled to begin in Sydney on June 7.

It is expected to run for 10 weeks.

Mr Roberts-Smith will be the first witness to take the stand.