Ben Roberts-Smith: Two-day hearing set to hear Victoria Cross recipient’s bid to reopen defamation appeal

A two-day hearing has been set aside for Ben Roberts-Smith’s application to reopen the appeal in his war crimes defamation case after revelations Nine reporter Nick Mckenzie was briefed on parts of his legal strategy.

After a brief hearing in Sydney on Monday, Federal Court Justice Nye Perram issued a list of orders on Wednesday outlining the next steps in the former soldier’s bid.

Justice Perram has listed two days to hear submissions from both sides regarding Mr Roberts-Smith’s application to amend the grounds of his appeal and seek a retrial.

The judge has also ordered lawyers for both Nine and the former soldier to file affidavits and submissions before the hearing on May 1 and 2.

The 46-year-old Victoria Cross recipient lost a defamation case against Nine in 2023 after it accused him of being a war criminal.

Mr Roberts-Smith appealed, but before that decision the release of a bombshell secret tape involving Nine reporter Nick McKenzie blew the case apart.

On the tape, McKenzie claims Mr Roberts-Smith’s ex-wife, Emma Roberts, and friend, Danielle Scott, had provided him with some of the former soldier’s legal strategy.

McKenzie also admitted acting unethically.

On Monday, Justice Perram noted a retrial before a full bench was on the cards.

It is also possible that former silk Nicholas Owens, who represented Nine in the initial defamation case and is now a Federal Court judge, will be forced to testify.

In the secret tape, aired by Sky News last week, McKenzie speaks to a witness known only as Person 17, a woman with whom Mr Roberts-Smith had an affair.

“You’ve got, um, Danielle and Emma, like trying to tell you yet again, I know you won’t burn me so you can’t tell Dean please or Monique (Nine’s lawyers), or anyone that I’ve told you this,” McKenzie says.

“You know the fact that they’re actively, like, briefing us on his legal strategy, in respect of you.

“We anticipated most of it, one or two things now we know, which is helpful, but the point, the reason I told you that was to say, like, you know we’ve got this, and they’re not hostile to you, despite your worst fears. They’re not.

“I’ve told you that so many times now, as well. And I had to tell you that extra bit to sort of prove it in your mind.

“I shouldn’t tell you. I’ve just breached my f...ing ethics in doing that, like this has put me in a s... position now, like if Dean knew that . . . I’d get my arse f...ing handed to me on a platter.”

Mr Roberts-Smith did not appear at the case management hearing in Sydney on Monday.

However, his parents, Sue and Len, were at court and issued a statement afterwards.

“We are here again of course to support our son Ben who has been subject to vilification by Nick McKenzie, Nine Media, Fairfax and others for almost a decade now,” they said.

“We note that the respondents admit the recording published of the conversation McKenzie had with Person 17 is genuine, that it did occur.

“The conversation is extremely concerning on a number of levels.

“These include questions about what legal strategies of Ben’s was McKenzie referring to and how did knowledge of them affect the conduct of the case before (Justice Anthony Besanko)?

“Worryingly, that might be impossible to know.

“The issue is whether or not it resulted in an unfair trial.”

A Nine spokesman said “there is no breach of legal privilege or ethical concern”.

“Any claims of a miscarriage of justice are baseless and a continuation of the sustained campaign of mistruths peddled by Ben Roberts-Smith and his media backers,” he said.

“Nine has full confidence in the reporting and actions of Nick McKenzie.”