Ben Roberts-Smith is fighting the release of an investigative journalist’s report provided to Seven West Media boss Kerry Stokes into “all allegations and rumours” about the decorated former soldier’s service in Afghanistan.
The confidential report addressed to the veteran’s lawyers but first sent to Mr Stokes’ right-hand man was commissioned in 2018 after The Age and two other newspapers published allegations that Mr Roberts-Smith was subject of an inquiry into alleged war crimes.
Mr Roberts-Smith, who became an executive at Seven after leaving the special forces, denies all allegations against him and is suing the newspapers for defamation.
The newspapers are running a truth defence and have sought the confidential report by Gold Walkley-winning journalist and public relations consultant Ross Coulthart under subpoena.
The report was, however, subject to legal professional privilege and shouldn’t be released, Mr Robert-Smith’s lawyer told the Federal Court on Monday.
Arthur Moses SC said the evidence showed the report was principally created to gather information about the allegations published so the former soldier’s lawyers could act if necessary to protect his reputation and other interests.
That evidence included correspondence from the former Sunday Night reporter to Mr Roberts-Smith in June 2018 that he’d been asked to “discuss all allegations and rumours” to assist Mr Moses.
“The document would not have come into existence but for the purpose to enable the applicant to obtain legal advice for the inquiry and the defamation proceedings,” Mr Moses said.
A subsidiary purpose was Seven protecting its reputation and the reputation of an employee subject to a “scurrilous campaign” by a rival media organisation.
However, the publishers of The Age, The Sydney Morning Herald and The Canberra Times argued the report addressed to Mr Roberts-Smith’s lawyer was in fact controlled by Seven commercial director Bruce McWilliam.
He’d had the idea for the report, he’d communicated with Coulthart and he’d received the first hard copy, the newspapers’ barrister said.
“It was Mr McWilliam who was then making decisions about who gets it and under which circumstances,” Nicholas Owens SC said.
The report was later provided to Mr Moses and Seven chairman Kerry Stokes but it was never shown to Mr Roberts-Smith or another of his senior barristers, Bruce McClintock SC, Mr Owens said.
“There is no suggestion privilege attaches to third-party-to-third-party communications,” Mr Owens says.
Mr Owens also submitted the report was designed to “stress test” Mr Roberts-Smith as Seven was at the time bankrolling his legal fees.
“It is not for a friendly common purpose,” he said.
Draft press releases emailed later in 2018 by Mr Coulthart to the Seven commercial director and Mr Roberts-Smith’s lawyer are also subject of a privilege claim dispute.
Justice Wendy Abraham has reserved her decision.
Mr Roberts-Smith, 42, is suing the news outlets over articles from 2018 that he says paint him as a criminal who broke the moral and legal rules of military engagement during his deployments in Afghanistan with the SAS.
The war hero is also suing over claims he assaulted a woman in Canberra.
A trial began in June but was halted after Sydney was locked down. It’s due to resume in 2022.