Lawyers and financial backers who assisted Ben Roberts-Smith in his multimillion-dollar defamation trial will fight to have subpoenas set aside as the dispute over who will pay the costs of the mammoth proceeding continues.
Earlier this year, Federal Court Justice Anthony Besanko 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.
The newspapers had accused Mr Roberts-Smith of war crimes, with the case expecting to have cost more than $25m in legal fees.
The VC recipient was dubbed an inconsistent witness with “motives to lie” in the scathing assessment by Justice Besanko, who dismissed the proceedings.
The disgraced soldier has since appealed, with the appeal aimed at finding error in Justice Besanko’s factual findings and is expected to cost about $1m, on top of the $25m already spent in legal fees throughout the case.
Mr Roberts-Smith’s lawyers argue Justice Besanko “erred in his findings” Mr Roberts-Smith was involved in four murders of unarmed prisoners in Afghanistan between 2009 and 2012.
The trial was funded at first by the Seven Network before a loan agreement was reached with Kerry Stokes’ private company Australian Capital Equity (ACE).
Documents tendered to the court revealed ACE asked for an additional 15 per cent on top of the loan repayment if Mr Roberts-Smith won the case.
The matter returned briefly to the Federal Court on Friday where the court was told subpoenas have been issued to Seven and its commercial director Bruce McWilliam, ACE, Mr Stokes and law firm Herbert Smith Freehills.
It was previously ruled that Seven, ACE and the law firm would have to provide invoices and records of attendance of their lawyers at the trial and they were supposed to be produced to the court on Friday.
But instead of answering the subpoenas in full, Neil Young KC, who is representing all the respondents, told the court he was applying to have elements of the subpoenas “narrowed” or put aside.
He said the outstanding issue had not yet been defined but he understood the scope of the subpoenas was going to be narrowed.
“There’s correspondence debating some aspect of narrowing and it hasn’t yet come to a conclusion,” Mr Young told the court.
“We don’t precisely know what the scope of the issue is that remains outstanding for those subpoenas.”
The matter was put over to next Thursday in order for Mr Young to receive instructions and apply to have the subpoenas scrapped.
A representative for Mark O’Brien Legal will also have an application to have subpoenas set aside heard on Thursday, despite a push from Nine Newspapers’ lawyer Lyndelle Barnett to have the matter heard on Friday.
A two-day hearing for the costs application against Mr Roberts-Smith, Seven and ACE has been set down for September 4.