Judge slaps down misconduct claim by Ben Roberts-Smith’s lawyer

A judge hearing the VC recipient’s bid to re-open his defamation appeal has slapped down a claim by his barrister that Nine reporter Nick McKenzie ‘threw his solicitors under a bus’.

Arthur Moses SC, left, Ben Roberts-Smith and Nick McKenzie

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A judge hearing Ben Roberts-Smith’s bid to re-open his defamation appeal has slapped down a claim by the former soldier’s barrister that Nine reporter Nick McKenzie “threw his solicitors under a bus”, ruling the allegation of misconduct by the lawyers was “unmoored” to any relevant issue.

On Monday, Federal Court judge Nye Perram delivered his reasons for setting aside or severely restricting most of the subpoenas Roberts-Smith’s legal team had served on parties to the case, including MinterEllison lawyers Peter Bartlett and Dean Levitan, who acted for Nine during the defamation trial.

The Victoria Cross recipient claims there was a miscarriage of justice in his failed defamation case against Nine newspapers after a secretly taped conversation emerged, suggesting that McKenzie obtained ­privileged information relating to his legal strategy during the trial.

Last week Arthur Moses SC, acting for Mr Roberts-Smith, alleged McKenzie had “thrown his lawyers under the bus” by suggesting they knew he’d been given privileged information about the former SAS soldier’s legal case but done nothing about it.

McKenzie outside the Federal Court in Sydney. Picture: Christian Gilles

“Mr McKenzie has, in effect, thrown them under the bus with this, because he says he gave it to them and they never told him anything,” Mr Moses said.

“Now, you would think senior officers of the court, when they received an email like this – and they can’t say they forgot about this, please – that they forgot about this email, that when they read this, you would think, as a lawyer, speaking honestly, ‘What the hell is going on here, Mr McKenzie?’

“... According to him, these two didn’t say anything; that’s a problem.

“This is huge. And, there, they come here, and they say, ‘Nothing to see here’.”

Mr Moses made clear the lawyers had not yet had the opportunity to explain their position.

On Monday, Justice Perram said he understood the submission “as being intended to convey that Mr Levitan and Mr Bartlett had engaged in misconduct by not telling McKenzie that the communications were privileged and by subsequently utilising the communications in the conduct of the litigation”.

However that did not correspond with Mr Roberts-Smith’s application to re-open the appeal, which was clear that the only person alleged to have been involved in misconduct was McKenzie.

Mr Roberts-Smith and Mr Moses leaving the Federal Court in Sydney. Picture: NewsWire / James Gourley

The submission by Mr Moses was therefore “unmoored” to any issue Mr Roberts-Smith’s application sought to ventilate, Justice Perram ruled, noting the Victoria Cross recipient’s team had not applied for leave to include the allegations against Mr Levitan and Mr Bartlett.

“In the absence of such an application, it is not appropriate for me to speculate on its likely outcome or whether the material before the court discloses a reasonable basis for the serious allegations made at the hearing against Mr Levitan and Mr Bartlett in open court,” Justice Perram said.

On Thursday, McKenzie will give evidence in the case and will be subject to cross-examination by Mr Moses about his claim in the secretly recorded conversation with Mr Roberts-Smith’s former mistress that the soldier’s ex-wife, Emma Roberts, and her friend Danielle Scott had been “actively briefing us on his legal strategy in respect to you”.

During the defamation trial, Mr Roberts-Smith launched a separate action accusing Ms Roberts of improperly accessing his emails more than 100 times, and issued subpoenas to Nine for any leaked material she had supplied.

The publisher said it had no such documents and the Federal Court dismissed the challenge, accepting Ms Roberts’ explanations that the emails were accessed only for legitimate purposes.