‘Not a fishing expedition’: Blow to Roberts-Smith’s defamation appeal hopes
The war veteran’s hopes of reopening his failed defamation case have suffered a setback after a court threw out demands that Nine newspapers hand over documents.
Ben Roberts-Smith’s hopes of reopening the appeal into his failed defamation case have suffered a setback after the Federal Court threw out or severely limited most of the subpoenas he had served on multiple parties to the case.
The Victoria Cross recipient claims there was a miscarriage of justice in his failed defamation case against Nine newspapers in light of claims that Nine investigative reporter Nick McKenzie allegedly obtained information relating to his legal position during trial.
In a secret recording, McKenzie is heard telling Robert-Smith’s former mistress, known in the defamation proceedings as Person 17, that the soldier’s former wife, Emma Roberts, and her friend Danielle Scott had been “actively briefing us on his legal strategy in respect of you”.
“I’ve just breached my f. king ethics … This has put me in a shit position now,” McKenzie tells the woman, who became known as Person 17 during the defamation trial.
On Wednesday, Roberts-Smith’s lawyers argued that the war veteran was entitled to see a wide range of communications between McKenzie and his lawyers, Person 17, Ms Roberts, Ms Scott and the ABC.
Roberts-Smith’s barrister, Arthur Moses SC, said he was seeking to discover whether legally privileged information had been obtained by McKenzie and whether Nine’s lawyers acted on it in the defamation case.
“This isn’t a fishing exhibition”, Mr Moses said, “to use the words of the French president, we don’t think – we know what was going on.”
Mr Moses quoted McKenzie telling Roberts-Smith’s former mistress in the secretly recorded conversation: “I’ve just breached my f.-king ethics … This has put me in a shit position now.”
Mr Moses said to describe the recording as “shocking” would be an understatement, and the audio made it clear McKenzie knew what he was doing was wrong.
“Mr McKenzie does not deny that the recording is genuine; he does not resolve from the language used,” he said.
However Justice Nye Perram issued orders on Thursday severely limiting the time-frames of most of the subpoenas served on MinterEllison lawyers Peter Bartlett and Dean Levitan, who acted for Nine during the defamation trial.
More than 2000 WhatsApp messages between McKenzie, Levitan and Bartlett would have needed to be reviewed, the court was told on Wednesday, as well as more than 1000 documents, a process that might have taken up to nine days.
The Federal Court is anxious to expedite the appeal due to the pending retirement of one of the Full Court judges, Justice Anna Katzmann, in early June.
Subpoenas to Emma Roberts and Danielle Scott were set aside entirely, as was a subpoena to the ABC for any communications between McKenzie and the MediaWatch program, which had examined the case against the journalist.
A subpoena to Person 17 – who had already produced some documents – was also set aside.
The remaining documents must be produced by Monday, the judge ordered.
McKenzie will still take the stand in a hearing next week and will be subject to cross examination by Mr Moses.
The journalist is expected to argue he did not believe the information he received from Ms Roberts and Ms Scott about the soldier’s case was legally privileged and that he had passed on all relevant information to Nine’s lawyers.
A Nine spokesperson has previously expressed full confidence in McKenzie’s reporting and conduct.
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