The Victoria Cross recipient failed in his bid to sue Nine Newspapers in 2023 for a series of articles alleging that he had committed war crimes, with the Federal Court instead finding, on the civil standard of the balance of probabilities, that the allegations were true.

Roberts-Smith is claiming a miscarriage of justice in his failed defamation case against Fairfax media after recordings surfaced of investigative reporter Nick McKenzie allegedly admitting to accessing information relating to the veteran’s legal strategy during trial.

In his reasons, Justice Nye Perram said Roberts-Smith is seeking to re-open his appeal, led by “fresh evidence” consisting of a recording of Mr McKenzie.

In the bombshell recordings made public last month, Mr McKenzie told a witness that he was given the information by Ms Emma Roberts, Ben’s former wife and Ms Danielle Scott, the best friend of Ms Roberts, and that he was breaching his ethics by divulging the information.

“They’ve actively like briefing us on his legal strategy, in respect of you,” he says in the recording.

“We anticipated most of it, one or two things now we know which is helpful.

“I’ve just breached my f***ing ethics in doing that, like this has put me in a s*it position now, like if Dean (Nine lawyer Dean Levitan) knew that and Peter (Nine lawyer Peter Bartlett) knew that, I’d get my arse f***ing handed to me on a platter.”

There is no suggestion of any wrongdoing by any lawyers in Nine’s legal team acting on the case.

Justice Perram said Roberts-Smith contends that Ms Roberts had access to one of his email accounts and suggests that Ms Roberts and/or Ms Scott were passing his privileged communications to Mr McKenzie who “utilised them against him in the defamation proceedings”.

Several subpoenas have also since been issued on behalf of Robert-Smith’s lawyers ahead of the hearing, including to Mr McKenzie himself as well as the ABC’s MediaWatch program after their report on the case in March.

However, Justice Perram said he does not see how communications between Mr McKenzie and Media Watch in 2025 “could reasonably be expected to throw light” on issues that occurred before 31 May 2021.

“The only relevance would be if Mr McKenzie had made admissions to Media Watch about the subject matter of the four issues,” he said.

During a hearing last week, Arthur Moses SC, acting on behalf of Roberts-Smith, said that Mr McKenzie had “thrown [his solicitors] under a bus”.

Referring to an affidavit by Mr McKenzie, Mr Moses told the court that the reporter claims he did not know the information he received was privileged.

“This isn’t a fishing expedition … we don’t think, we know what’s gone on here,” he said.

“We know that Mr McKenzie by his own words has made admissions in the audio.”

In his published reasons, Justice Perram said the allegation Mr McKenzie had “thrown the solicitors under a bus” was “unmoored to any issue which the appellant’s re-opening application seeks to ventilate”, as Roberts-Smith had only alleged wrongdoing on the part of Mr McKenzie, not Mr Levitan or Mr Bartlett.

He then set aside parts of subpoenas requesting records or notes of communication between Mr McKenzie and the two lawyers.

The retrial hearing will span over two days this week in the Federal Court in Sydney.