Billionaire Kerry Stokes and his Seven Network have had a minor win in an ongoing battle over who pays for millions of dollars in legal costs from Ben Roberts-Smith’s failed defamation lawsuits.

Nine newspapers and The Canberra Times are seeking their expenses of defending the bitterly fought cases from Mr Roberts-Smith as well as from Seven and Mr Stokes’ private firm Australian Capital Equity.

The newspapers argue that Seven and ACE should be on the hook for part of the legal bill as the companies financially backed the Victoria Cross recipient in the Federal Court and played a major role in how the lawsuits were run.

Justice Anthony 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.

The reports included his involvement in the unlawful murder of four unarmed prisoners.

The matter returned in July when the judge rejected applications by Seven and ACE to set aside subpoenas for thousands of documents sought by Nine and The Canberra Times ahead of an October hearing on who pays what.

The judge also ordered Mr Roberts-Smith produce a number of documents to the media firms he sued.

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

Seven and ACE filed an application for leave to appeal Justice Besanko’s decision in the Full Federal Court earlier this week.

On Friday, Seven, ACE and Mr Roberts-Smith came before the judge seeking to put the costs bid on ice through what’s known legally as a stay application.

They argued that producing the documents now before the appeal had been resolved would make the court challenge pointless.

“Any appeal would be rendered futile or nugatory if production was required under the subpoenas prior to its determination,” said Seven’s barrister Justin Williams SC.

Sam Duggan, representing Mr Roberts-Smith, echoed these sentiments.

Appearing for Nine and The Canberra Times, Nicholas Owens SC said documents should be handed to the court as originally planned but agreed that his clients should not be able to view them until Seven’s appeal was heard and concluded in their favour.

Justice Besanko declined to make a final decision one way or the other.

“I do not consider the circumstances are sufficiently clear at this stage to determine the best course of action,” he said.

He offered both Seven and Mr Roberts-Smith a minor win, allowing them a minimum two-week break from producing the documents.

The matter will return to court on September 1 when the judge will ask for more clarity.

He may extend the delay at that time or order documents be produced.

A report into alleged war crimes by special forces in Afghanistan was released in November 2020 finding credible evidence 39 civilians and prisoners were unlawfully killed by Australian troops while two others were subject to cruelty from 2007 to 2013.

Mr Roberts-Smith has not been charged and maintains his innocence.

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– AAP