Ben Roberts-Smith’s defamation appeal, with judgment reserved since the 16th of February 2024, is set down for another 2-day hearing after a recording was leaked of Nine journalist Nick McKenzie.

In the recording McKenzie talks to Ben Roberts-Smith ex-girlfriend, who is the witness “Person 17” and who claims she was assaulted by Roberts-Smith, about how Nine were being fed inside information from Roberts-Smith’s ex-wife and her friend about Roberts-Smith’s legal tactics for the defamation hearing.

Roberts-Smith’s lawyers argue, because of what is on the recording, the appeal should be allowed in Ben Roberts-Smith favour because there “has been a miscarriage of justice and denial of a fair trial” because of Nick McKenzie’s “misconduct.” Failing that, the lawyers argue the matter should be retried.

But the key finding against Ben Roberts-Smith was that on the balance of probabilities he was a war criminal who murdered innocent civilians, and the leaked recording has nothing to do with those findings.

There is now a 2-day interlocutory hearing to deal with the secret recording set down on the 1st and 2nd of May 2025 before Justice Perram, Justice Katzmann and Justice Kennett in the Federal Court of Australia.

“Justice Nye Perram told the parties on Monday (31/3/25) that one of the three judges who heard the appeal last year, Justice Anna Katzmann, “retires at the start of June” and “we have to wrap this up”.”

How the recording was leaked as per the affidavit of Monica Allen:

There would have to be a good chance that Ben Roberts-Smith, or his lawyers as per paragraph 7 and 8 above, leaked the recording to Murdoch’s propagandist at Sky News Sharri Markson.

A transcript of the full recording is in the paperwork filed as per below:

Links for filed documents: Interlocutory application – Affidavit by Monica Allen (27-3-25) – Affidavit by Monica Allen (30-3-25) – Court orders for filing dates

Some of the questions to be answered at the 2-day hearing on the 1st and 2nd of May 2025:

1. Nick McKenzie says in the recording, “I shouldn’t tell you. I’ve just breached my f##king ethics in doing that”. What does McKenzie mean when he says, “I’ve just breached my f##king ethics”?
2. Why did Ben Roberts-Smith ex-girlfriend, who is witness “Person 17”, record the conversation with Nick McKenzie and why did she leak it? And why now? And is there a longer recording and what does it say?
3. How long has Ben Roberts-Smith known about the recording? How long have his lawyers known?
4. Who owns the email address ellroyferris@proton.me which sent the recording to Roberts-Smiths’ lawyers?

Obviously, there are a lot more questions than the above, but they are good enough for starters.

Between now and the hearing and at the hearing a lot of the questions of who, what and when should be answered but maybe not all the questions such as who owns the email address ellroyferris@proton.me.

Normally the court of appeal does not allow witnesses but given it is set down for a 2-day hearing, and it is an interlocutory hearing, there would have to be a big chance of that happening otherwise the judges will be making a judgement based on untested affidavits.

Nine’s barrister for the defamation trial was Nicholas Owens, SC, who is now a Federal Court of Australia judge, and given what’s on the recording, there has to be a possibility he might be called as a witness.

Side note

As a side note, Ben Roberts-Smith’s lawyer Monica Allen, who is also Ben Roberts-Smith’s ex-girlfriend has jumped ship from law firm Mark O’Brien Legal, who represented Ben at the defamation case and appeal, to a new law firm BlackBay Lawyers and taken Ben with her as a client.

But maybe Ben Roberts-Smith changed lawyers because the McKenzie recording was emailed to Paul Svilans at Mark O’Brien Legal on the 15th of March 2025 which makes him a potential witness so being prudent it was a better option to have Monica Allen at BlackBay Lawyers deal with the interlocutory application and hearing.

Nick McKenzie

I recall watching McKenzie talking about how stressful the Ben Roberts-Smith defamation case was and how he would get up early and go for runs to deal with the stress.

Well, imagine hearing your own voice on Sky News taking about how Nine’s lawyers had used inside information about Ben Roberts-Smith’s legal tactics?

Nick McKenzie’s heart would have ended up in his throat because it is no ordinary defamation case.

The total court costs have been estimated at about $30 to $35 million and Nine had costs awarded to them when they won which has to be paid by Channel 7 owner Kerry Stokes who funded Ben Roberts-Smith case.

But if Nine lose the appeal that will be reversed in Ben Roberts-Smith’s favour. And if the Nick McKenzie recording has an impact on the appeal, then that is on him.

Closing arguments

Witness 17 was only involved in the defamation case because of her domestic violence allegations against Ben Roberts-Smith that he punched her in the face, which was reported by Nine, so Roberts-Smith also sued for that allegation.

While the “judge did not find the news outlets had proven the former soldier committed an act of domestic violence in 2018 against a former lover, dubbed Person 17” the judge did find “Ben Roberts-Smith engaged in “intimidatory, threatening and controlling” conduct towards Person 17.

It’s a long stretch that the recording, with and about person 17, somehow undermines the evidence given by numerous soldiers against Ben Roberts-Smith about the war crimes and murders.

But with Kerry Stokes on the hook for $30 million or more he would have a huge incentive to spend another $1 million or so having a role of the dice on the interlocutory hearing and I suspect it is only going ahead because Stokes approved it.

It is also a bit rich for Ben Roberts-Smith to accuse Nine of playing dirty pool given his conduct during the court case. I published an article in February 2022 titled “Powerful prima facie case to charge billionaire Kerry Stokes, Ryan Stokes and Ben Roberts-Smith with attempting to pervert the course of justice”. (Click here to read the article)

There are so many interested parties and moving parts to the case it is hard to keep track of them all and because there are so many moving parts this case is a certainty to end up in the High Court of Australia.

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