Channel Seven billed $170,000 for legal costs of Ben Roberts-Smith’s witnesses

Channel Seven was billed almost $170,000 for the legal costs of three witnesses testifying on behalf of Ben Roberts-Smith in his defamation fight against war crimes allegations, including more than $65,000 over two years to pay for lawyers acting for his former patrol commander, a close friend.

Documents aired in the Federal Court on Thursday shows bills and payslips sent to the lawyers were paid by Seven Network (Operations), a subsidiary of the public company Seven West Media.

Ben Robert-Smith leaves the Federal Court in Sydney on Thursday.Credit: James Alcock

However, a spokesman for Seven West Media executive chairman Kerry Stokes said the bills were not ultimately paid by shareholders, but “re-charged” to the Stokes family’s private company, Australian Capital Equity (ACE). No documents verifying this claim have been made public.

The spokesman said Stokes believed soldiers should have legal representation when they appeared at the inquiry by the Inspector-General of the Australian Defence Force into war crimes allegations against Australian soldiers.

Lawyers for The Age, The Sydney Morning Herald and The Canberra Times, subpoenaed Seven Network Operations, Stokes and commercial director Bruce McWilliam late on Thursday, personally requiring them to produce any relevant documents to the court.

The bills cover not only work for the witnesses relating to Roberts-Smith’s defamation case against the newspapers, but also work done on their behalf relating to the Inspector-General’s war crimes inquiry.

The commander, known as Person 5, told the Federal Court on Thursday he had discovered for the first time this week – almost two years after engaging his legal team – that their invoices had been sent to Seven, which has employed Roberts-Smith as an executive since 2012.

Person 5 told the court that over two years he had never asked his lawyers how much they charged, discussed payment for their services, or received any bills.

“I haven’t spoken to anybody about [payment] and they haven’t put anything forward,” he said, denying a suggestion from the newspapers’ barrister, Nicholas Owens, SC, that it was inconceivable he would never have asked a question about payment.

Person 5 also said he had never spoken to Stokes or anyone else employed by Seven other than Roberts-Smith.

Owens tendered invoices from the lawyers to Seven Network Operations that amounted to almost $170,000 for legal representation not only for Person 5, but for two other witnesses, Person 11 and Person 33.

The newspapers allege that Roberts-Smith directed a rookie soldier to kill an unarmed Afghan prisoner in 2009, and that Person 5, who cannot be named for national security reasons, ordered the killing. Person 5 said he never killed a prisoner, and never ordered a subordinate to do so.

On Thursday, Person 5 told the court he had asked Roberts-Smith in May 2020 to put him in touch with a lawyer, but said there was no discussion about who would pay the fees. Soon after, he was contacted by solicitor Justine Munsie from Addisons lawyers. She has been acting for him ever since. He has also engaged a barrister.

When asked why Seven Network Operations was picking up his bills, Person 5 said, “I don’t know, maybe you could ask [the] Seven Network”.

Person 5 said he had never spoken to Stokes, never heard of commercial director Bruce McWilliam, and had no discussions with anyone at Seven apart from Roberts-Smith, who was employed by the company in 2012, but stood down from his position early last year to focus on the defamation case.

Last year, The Age and Herald revealed Seven West Media had loaned Roberts-Smith $1.87 million of company funds for his private legal expenses. Again, Seven’s loan was repaid by Stokes’ private company, ACE. A deal between the family and Roberts-Smith, signed in June 2020, required Roberts-Smith to pay ACE a 15 per cent share of any funds he won in his defamation battles.

Ownership Matters director Dean Paatsch, who specialises in governance and proxy advice, said it was “entirely appropriate that private funding [for] this litigation be through Mr Stokes directly. Seven shareholders have no interest in becoming litigation funders.”

The newspapers, which are defending the defamation action bought by Roberts-Smith, have covered some costs of some witnesses in the case. It is not uncommon for parties to a legal action to assist witnesses with their costs. Neither Seven nor Stokes is a party in this case.

Roberts-Smith is suing the newspapers over articles in 2018 he says portray him as a war criminal involved in unlawful killing of Afghan prisoners. He denies all wrongdoing and says any killings were lawful and in the heat of battle. The newspapers seek to rely on a defence of truth. The trial continues.

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