A Seven West Media boss has told a court he knew the network would be attacked after allegations Ben Roberts-Smith committed war crimes came to light.
While the defamation trial for Ben Roberts-Smith against former Fairfax newspapers and journalists is not likely to resume this year, both parties continue to fight for access over documents.
The Victoria Cross recipient is suing publications The Sydney Morning Herald, The Age and The Canberra Times over stories alleging he committed war crimes while deployed as an SAS soldier in the Middle East.
Mr Roberts-Smith denies the allegations, which include him committing or being complicit in the murder of Afghan civilians, and refutes claims he assaulted a woman with whom he was allegedly having an affair.
The publications are defending the reports from 2018 as true.
An interlocutory hearing took place on October 18 in the Federal Court, where the barrister for the media outlets, Nicholas Owens SC, made an application against Mr Roberts-Smith.
The interlocutory application was made after Mr Roberts-Smith’s barrister Arthur Moses SC sought to make claims for legal professional privilege to subpoenaed documents from Cato & Clive Partners Pty Ltd and freelance journalist Ross Coulthart, who worked for the PR agency at the time.
All documents, including a report written by Mr Coulthard, were subpoenaed to the court by June 2020, with Mr Moses making his claim shortly after.
More than 12 months later on August 23, 2021, lawyers for the newspapers filed an interlocutory application challenging the claims for privilege.
Affidavits read to the court during the October hearing included one from Seven West Media commercial director Bruce McWilliam.
Mr Roberts-Smith has worked for Seven West Media since 2012 and is taking leave from his role as Seven Queensland general manager for the proceedings.
Mr McWilliam said he was aware in mid-2017 that Mr Roberts-Smith had been contacted by journalist Chris Masters in regard to his book No Front Line.
Mr Roberts-Smith said the journalist made allegations he “unlawfully killed persons in Afghanistan and possibly committed other war crimes” but they were false.
“Mr McWilliam suggested he retain Mark O’Brien, a solicitor specialising in defamation, to act on his behalf to protect his reputation in the face of false allegations he thought were being made against him,” Justice Wendy Abraham’s judgment said.
“He was concerned that the applicant’s employment by, or association with Seven West Media, may have been a contributing reason as to why he was being targeted by Mr Masters.”
Following the publication of one of the articles being disputed at trial, Mr McWilliam asked Mr Coulthart to prepare a report about the rumours and allegations, according to the judgment.
“He will investigate and check them out independently to the extent he can. Ross is a lawyer by training and he worked for us as an investigative reporter on Sunday Night,” Mr McWilliam told Mr Roberts-Smith.
“He has an interest in military stories. He has an inquiring mind and will be relentless in investigating the allegations.”
In his affidavit, Mr McWilliam said he knew Seven West Media would be “attacked” for continuing to employ Mr Roberts-Smith.
Mr Coulthart’s emails of draft media statements on behalf of Mr Roberts-Smith to his lawyers were the subject of his subpoena, which Mr Owens was fighting to restrict access, the court heard.
However, Justice Wendy Abraham on Tuesday dismissed the application.
“The claim for privilege has been upheld,” she told the court.
“The dominant purpose of the document was to inform the applicant of the various allegations reviewed by Mr Coulthart and enable him to provide instructions in relation to the allegations so that his lawyers, with all of the material in one place, could advise the applicant in relation to a possible attendance at the Inquiry and possible defamation proceedings.”
Justice Abraham said the document would not have come into existence without Mr Roberts-Smith obtaining advice from his lawyers.
“The applicant has established his claim for legal professional privilege,” she said.
“The respondents’ application is dismissed.”
The parties will reappear in front of Justice Abraham on Friday for the judgment of other matters.
The blockbuster trial began in June but was abandoned in August after NSW’s disastrous outbreak of the Covid-19 Delta strain.
Trial judge Justice Anthony Besanko last month announced a new trial date is due to be fixed in 2022 following a hearing on December 3.
Justice Besanko chose not to order the trial to move to Adelaide, as argued by Mr Roberts-Smith’s lawyers, or decide whether it would continue in Sydney.