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Ben Roberts-Smith fails to overturn defamation decision

Despite convincing the court to hear explosive new evidence, Ben Roberts-Smith’s appeal of his defamation action has fallen short.

May 19, 2025 By Naomi Neilson
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Justices Nye Perram, Anna Katzmann and Geoffrey Kennett were unanimous in their decision to dismiss Roberts-Smith’s appeal of unsuccessful defamation proceedings he lodged against The Sydney Morning Herald, The Age and the Canberra Times in 2018.

Justice Perram also published the court’s reasons for dismissing Roberts-Smith’s application to reopen the appeal.

The decision was handed down less than two weeks after The Age investigative reporter Nick McKenzie gave evidence about a secret recording in which he allegedly admitted to Roberts-Smith’s former lover, Person 17, he had “breached my f--king ethics”.

The media parties objected to the recording being admitted into evidence on the grounds it was “illegally obtained evidence”.

In rejecting this, the full court said the recording was admissible.

Person 17 alleged McKenzie had passed on privileged legal information about Roberts-Smith’s cross-examination strategy.

The court heard this information was given to McKenzie via Danielle Smith, a friend of Roberts-Smith’s ex-wife, Emma Roberts. It was suggested that the information originated from Roberts-Smith’s emails.

Questioned on whether he knew the information to be legally privileged, McKenzie claimed he thought it was just “gossiping” between best friends and this was a “natural conclusion” to make.

“Why would anyone think this is legally privileged, this is hearsay from the best friend of a wife who has since become estranged,” McKenzie said.

Arthur Moses SC, appearing for Roberts-Smith on the appeal, claimed McKenzie’s evidence was nonsense and “rubbish”.

During the 10-day appeal, Bret Walker SC, also appearing for Roberts-Smith, said Justice Anthony Besanko engaged in an incomplete “fact-finding mission”, particularly on findings related to an allegation Roberts-Smith kicked an unarmed man off a cliff.

Walker suggested Justice Besanko leaned into speculation put by the media companies that was “not supported by evidence”.

Partner Peter Bartlett, whose firm MinterEllison was behind the win, said the scale of the original defamation proceedings – which spanned almost 40 interim judgments and hundreds of witnesses for both sides – had been one of the biggest of his career.

“I’ve thought about this case a million times since and, even with the benefit of hindsight, I don’t believe we could have done more. I don’t believe we left a stone unturned. This was a huge, comprehensive, well-organised defence of a defamation case,” Bartlett said afterwards.

Naomi Neilson

Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly. 

You can email Naomi at: This email address is being protected from spambots. You need JavaScript enabled to view it.

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