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Ben Roberts-Smith has been ordered to pay almost $1 million into court to cover the legal costs of Nine newspapers in the event he loses his appeal against his devastating defamation loss.
In a historic decision on June 1, Federal Court Justice Anthony Besanko dismissed Roberts-Smith’s multimillion-dollar defamation case against The Sydney Morning Herald and The Age.
Ben Roberts-Smith has agreed to pay almost $1 million into court as security for Nine’s legal costs in the event he loses his defamation appeal.Credit: Philip Gostelow
Besanko found 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 that decision. The Full Court of the Federal Court will hear his appeal from February 5 to 16.
Nine, the owner of the mastheads, had demanded Roberts-Smith provide security for its legal costs of the appeal before the hearing.
The former Special Air Service corporal agreed to that demand and Justice Nye Perram made orders on Thursday and Friday giving effect to that agreement.
Under the orders, Roberts-Smith will pay $910,000 into court in two tranches of $300,000 and one payment of $310,000.
The first payment was due by October 6 and has been paid. The second and third instalments are to be paid by December 8 and January 29.
The orders stipulate that the security be provided by Roberts-Smith “by way of electronic payment into an interest-bearing account nominated by a registrar of the court”.
Roberts-Smith and Nine are already locked in a protracted fight over the multimillion-dollar costs of his defamation trial, which are estimated at a combined $25 million.
Roberts-Smith’s employer at the time, Seven Network, funded his lawsuit under a loan agreement from 2018, before Seven West Media chairman Kerry Stokes’ private company, Australian Capital Equity, took over the loan on June 24, 2020, and paid out his existing debt to Seven.
Nine is ultimately seeking a court order forcing ACE, and potentially also the Seven Network, to pay the costs of the defamation litigation.
As part of its application for a third-party costs order, Nine is seeking to show ACE and Seven controlled the litigation and has sought access to communications inside the Roberts-Smith camp.
The Federal Court has previously heard that a search of Seven Network commercial director Bruce McWilliam’s emails alone yielded 8650 emails between McWilliam and one or more of Roberts-Smith and his lawyers between 2018, when the case was filed, and 2023.
Roberts-Smith took leave from his position as general manager of Seven’s Queensland operations ahead of the defamation trial. He resigned on June 2, a day after Besanko dismissed his lawsuit against the Herald and The Age.
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