Roberts-Smith lodged an appeal. The Full Court – Justices Nye Perram, Anna Katzmann and Geoffrey Kennett – said in a decision in May that the evidence was sufficiently cogent to support Besanko’s findings that Roberts-Smith murdered four Afghan men, contrary to the rules of engagement that bound the SAS.
Roberts-Smith was ordered by the Full Court to pay the newspapers’ costs of the appeal on the ordinary basis, which covers about 70 per cent of their bills.
Roberts-Smith’s capacity to cover the appeal costs is unclear.
The Age and the Herald have served a subpoena to produce documents on Australia’s richest woman, Gina Rinehart, who has publicly expressed her support for Roberts-Smith and decried the “relentless attack” on him, to ascertain if she bankrolled his appeal.
When asked by The Australian Financial Review, also owned by Nine, whether she had funded the appeal, Rinehart did not respond.
The subpoena is seeking, among other things, a copy of “any document that records or evidences any payment” by Rinehart, or a company in which she has a controlling or significant interest, to Roberts-Smith between June 1, 2023, and July 22 this year “for the purposes of providing funds to be used to pay … [Roberts-Smith’s] legal costs” in the appeal.
The media outlets are also seeking a copy of any document revealing an “agreement or understanding” between Rinehart and Roberts-Smith relating to the payment of, or the liability for the payment of, his legal costs in the appeal, and any correspondence between them “regarding the conduct and/or progress of this proceeding”.
The media outlets were unable to track down Rinehart to serve the subpoena on her personally. On August 28, the Federal Court made orders dispensing with the requirement to serve her personally and allowing service to be effected via other means, including post and email.
Roberts-Smith has already paid $910,000 into court as security for Nine’s legal costs as a condition of bringing the appeal to the Full Court, so those costs can be recovered. The source of those funds is unknown.
The assessment of the multimillion-dollar costs payable by Stokes comes after the High Court refused Roberts-Smith’s application for special leave to appeal against the Full Court’s decision. This marked the end of his defamation case against the newspapers, and left the former soldier with yet another costs order against him.