By Jack Gramenz in Sydney

DETERMINING who pays for Ben Roberts-Smith’s failed lawsuit against three newspapers which published substantially true allegations he engaged in war crimes will have to wait a while longer.

Federal Court Justice Anthony Besanko set a timeline on Friday for an application to have third parties pay some of the costs for the media companies defending the Victoria Cross recipient’s defamation lawsuit.

That application was initially scheduled to be heard on September 5.

“It has become apparent the application cannot be heard on that date,” Justice Besanko said.

“Every effort should be made to proceed as expeditiously as possible,” he said.

Disputes over subpoenas, the number of documents they should cover, and privilege claims over those documents will not be finalised by September 5 and Justice Besanko expressed “considerable doubt” the matter could be heard at all that month.

He also addressed the production of documents in relation to subpoenas to the third parties.

Mr Roberts-Smith’s lawsuits were funded partially by the Seven Network he was employed by, chaired by billionaire Kerry Stokes, whose private company Australian Capital Equity (ACE) also contributed to funding the lawsuit on a loan agreement.

Seven commercial director Bruce McWilliam was also targeted with subpoenas covering more than 8600 emails, the court heard in July, and has been given until August 21 to comply, when any claim of privilege is also due.

Other subpoenas to Seven Network, Seven West Media, ACE and Mr Stokes are due by September 1 with privilege claims by September 8, ahead of a case management hearing on September 12.

The documents are sought in an attempt to show the third parties had influence over how the trial was run, however Neil Young KC told the court in July the subpoenas were too wide and lacked a legitimate forensic purpose.

Mr Roberts-Smith has already agreed to cover the legal bills as well as paying additional indemnity costs after March 17, 2020 when the media companies offered to resolve the proceedings, but is resisting paying for indemnity costs before that date.

Legal costs for both sides are expected to exceed $25 million.

Justice Besanko dismissed Mr Roberts-Smith’s lawsuits in June, finding reports in The Sydney Morning Herald, The Age and The Canberra Times alleging he engaged in war crimes while deployed with the SAS in Afghanistan were substantially true.

It came after 110 days of hearings.

Mr Roberts-Smith has not been criminally charged, maintains his innocence and has appealed the decision, arguing the judge’s findings were improbable, speculative and based on unreliable witnesses.

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