Battle for costs continue after Kerry Stokes agrees to pay Nine’s fees in Ben Roberts-Smith’s failed defamation trial

The battle over costs is continuing after billionaire Kerry Stokes agreed to pay Ben Roberts-Smith’s opponents legal fees, estimated to reach up to $25m.

The battle over costs in Ben Roberts-Smith’s multimillion-dollar failed defamation case continues despite media mogul Kerry Stokes agreeing to pay the legal costs of the embattled soldier’s opponents.

Mr Stokes, the owner of Seven West Media, made the decision to pay the costs, with an order made during a surprise hearing in the Federal Court on Monday for his private company Australian Capital Equity to pay Nine Newspaper’s costs of proceedings on an indemnity basis.

The move means thousands of documents and personal emails showing the level of involvement from Mr Roberts-Smith’s financial supporters in the trial will not be produced to the Court pursuant to a subpoena.

It’s been estimated the total legal bills for the marathon defamation case exceed $25 million, meaning Mr Stokes will have to pay $12.5 million.

A drawn-out fight over costs in Ben Roberts-Smith’s defamation case is ongoing. Picture: NCA NewsWire / David Swift

Despite the win, the matter returned to the Federal Court on Monday after Nine Newspapers made an application for Justice Besanko to make a lump sum costs order.

Nicholas Owens SC, representing Nine, told the court a lump sum costs order “has the greatest upside” in resolving the costs aspect in the “long-running, complicate and very expensive litigation”.

“The lump sum process has very great advantages, it is quicker, it is cheaper and it has a lot of advantages,” Mr Owens said.

Representing Mr Stokes and ACE, Neil Young KC opposed the order as he only had two hours notice of the application before fronting court.

He urged Justice Anthony Besanko to deny the application so it could be made at a later date with the proper materials.

Justice Besanko reserved his decision.

In July, the Federal Court ruled some of the imputations against Mr Roberts-Smith put forward across six articles by The Sydney Morning Herald, The Age and The Canberra Times were substantially true.

Justice Besanko dismissed Mr Robert-Smith’s lawsuit after finding the newspapers had proven on the civil standard of the balance of probabilities the Victoria Cross recipient had been complicit in war crimes while serving in Afghanistan.

Billionaire media mogul Kerry Stokes has agreed to pay costs. Picture: NCA NewsWire / Martin Ollman

Mr Roberts-Smith has launched an appeal against the first instance judgment, which will be heard in February.

Once the first instance proceedings were dismissed, Nine Newspapers sought a third-party order asking for costs from Mr Roberts-Smith’s financial backers, Seven Network, its owner billionaire media mogul Kerry Stokes and his private company Australian Capital Equity (ACE).

Mr Stokes and Seven initially funded the lawsuit before a loan agreement was reached with ACE, which would be paid 15 per cent interest if Mr Roberts-Smith was successful.

As part of the application, Nine had issued subpoenas which sought to show how Seven and ACE controlled the litigation.

Justice Besanko granted access to the documents, with an appeal filed by the Seven parties in front of a full court and later dismissed.

Mr Stokes and his companies had resisted the third-party costs application, but changed his tune after they did not meet the deadline on Friday to produce the thousands of documents showing communications during the trial.

The communications included file notes, written correspondence, text messages and messages on encrypted services such as WhatsApp, Signal and Telegram.

The matter will return to court on Tuesday.

Mr Roberts-Smith is appealing Justice Besanko’s findings, with the Full Court to hear the appeal in February for two weeks.

Originally published as Battle for costs continue after Kerry Stokes agrees to pay Nine’s fees in Ben Roberts-Smith’s failed defamation trial