The Nine journalist Nick McKenzie was told about a legal action Ben Roberts-Smith’s ex-wife planned to take against the war veteran ahead of his defamation trial, a court has heard, with the informant allegedly telling him “it’s always good to be on the front foot”.
On Tuesday the federal court of Australia heard that a friend of Emma Roberts had told McKenzie that Roberts-Smith was planning to notify and write to the Commonwealth director of public prosecutions (CDPP) about an alleged “breach” and to “restrain any further publications being made”.
The Signal message, which Danielle Scott sent in November 2020, was read to the court by Arthur Moses SC – who is representing Roberts-Smith. She reportedly also said to McKenzie in the message, “you owe me 2x beers”.
Roberts-Smith is arguing that his unsuccessful defamation case against McKenzie and Nine newspapers should be retried because there was a “miscarriage of justice” caused by the alleged “misconduct” of McKenzie.
According to an affidavit by Roberts-Smith filed by one of his solicitors in the federal court last month, McKenzie allegedly told a witness in a secret audio recording that Emma Roberts and her friend were “actively briefing us on his legal strategy in respect of you … we anticipated most of it. One or two things now we know.”
Roberts-Smith, who did not appear in court on Tuesday, has claimed that McKenzie “engaged in wilful misconduct in the proceedings by improperly and unlawfully obtaining and retaining information concerning [Roberts-Smith’s] legal strategy concerning the trial that was confidential and privileged”.
The defamation proceedings, which ran for a year in the federal court in Sydney, were brought by Roberts-Smith against McKenzie and Nine in relation to a series of stories published between June and August 2018, alleging the war veteran was guilty of murder and war crimes.
Roberts-Smith lost that case. Justice Anthony Besanko ruled in June 2023 that Roberts-Smith, on the balance of probabilities, had murdered unarmed civilians while serving in the Australian army in Afghanistan.
On Tuesday, Moses argued that Nine’s lawyers Dean Levitan and Peter Bartlett should be called to give oral evidence at a hearing scheduled for Thursday and Friday this week.
He argued that his team was entitled to test McKenzie’s claims he did not know the information provided to him was privileged and “ascertain their version of events”.
“They may have told him you can’t do this, we don’t know,” Moses said in court on Tuesday.
“We don’t have their version of events.”
Lawyers for Levitan argued on Tuesday that the “true purpose” of calling the solicitor to give evidence was for the applicant to gather more “or some” evidence of misuse that would permit a “larger appeal”.
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They said it was a “fishing expedition” designed not to obtain evidence, but as an action of discovery.
Tom Blackburn KC, who is acting on behalf of Bartlett, said it was an exercise to “mount an attack” on his client.
Blackburn told the court the bid for retrial could not succeed “unless they demonstrate that the material was used in some way”.
“If they can’t demonstrate use and a kind of high-level use then … [it] simply can’t succeed.”
The federal court judge Nye Perram has reserved his decision on the interlocutory application.
