Federal Court of Australia

Roberts-Smith v Fairfax Publications Pty Limited (Reopening Application) [2025] FCAFC 66

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the appellant on 27 March 2025 be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the appellant on 27 March 2025 be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the appellant on 27 March 2025 be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appeals in these proceedings were heard in February last year. In the proceedings below, the appellant sought damages for defamation against the respondents. On 27 March this year, when the draft judgment was close to completion, the appellant filed an interlocutory application seeking leave to file an amended notice of appeal in each proceeding raising an additional ground of appeal and seeking an alternative order.

2    The appellant’s justification for filing the interlocutory application at this late stage rests on an audio recording which was made available to his solicitors on or about 15 March 2025. The recording is of a portion of a telephone conversation between the second respondent, Mr Nick McKenzie, and a witness whose identity is the subject of suppression orders, who was given the pseudonym “Person 17”.

3    Before addressing the substance of the interlocutory application and the contents of the audio recording, some context is necessary.

Background

Person 17

4    In October 2017 the appellant commenced an extra-marital affair with Person 17. The relationship ended in April 2018. In articles published by the respondents in August 2018 (referred to as “the Group 3 articles”), it was suggested that the appellant had acted violently towards Person 17 after a function in Canberra which they both attended. The primary judge found that the Group 3 articles carried the defamatory imputations that:

(a)    the applicant committed an act of domestic violence against a woman in the Hotel Realm in Canberra (Imputation 7); and

(b)    the applicant is a hypocrite who publicly supported Rosie Batty, a domestic violence campaigner, when in private he abused a woman (Imputation 8).

5    The respondents raised defences of substantial truth and contextual truth in relation to these imputations. There was thus a factual context as to whether the appellant had in fact committed an act of violence against Person 17 on a particular night at the Hotel Realm in Canberra.

6    The primary judge considered the evidence and submissions in relation to this issue (both of which were extensive) between J[1968] and J[2227]. The evidence covered a number of events before and after the night of the alleged assault. His Honour accepted the evidence of Person 17 in a number of respects and rejected the evidence of the appellant on all controversial aspects. On the aspects of Person 17’s evidence that were accepted, his Honour expressly found the appellant’s denials to be false (J[2213]). His Honour went on to reject certain explanations given by the appellant before observing at J[2220] that he had difficulty accepting the appellant’s evidence on any disputed issue. Among other things, he was found to have lied about being separated from his then wife, Ms Emma Roberts (who formerly went by the name of Emma Roberts-Smith) while carrying on his relationship with Person 17.

7    However, the primary judge had significant reservations about aspects of Person 17’s evidence which he set out at J[2221]-[2225]. He concluded at J[2226]:

In conclusion, I do not accept the applicant’s evidence. Nevertheless, I must be satisfied on the balance of probabilities having regard to the criminal conduct alleged, that Person 17’s evidence is reliable and should be accepted. For the reasons I have given, I am not satisfied that Person 17’s evidence is sufficiently reliable to form the basis of a finding that the assault occurred and Imputations 7 and 8 are substantially true.

8    His Honour found the defence of contextual truth to have been established, for reasons explained later at J[2601]-[2607]: essentially, that imputations 7 and 8 did not materially damage the appellant’s reputation because, in light of the imputations that were found to be substantially true, he had no reputation capable of being further harmed.

9    The conclusion as to contextual truth is challenged by ground 16 of the notice of appeal, merely as a corollary of the attacks that are made on his Honour’s conclusions that other imputations were true. There was no notice of contention in relation to the conclusions concerning imputations 7 and 8 and substantial truth. These imputations, and the events concerning Person 17, therefore featured in the submissions on the appeal only in so far as some of his Honour’s findings relating to them contributed to his overall view as to the appellant’s credibility. None of the findings that his Honour made in connection with Person 17 is challenged.

Ms Roberts and Ms Scott

10    The appellant and Ms Roberts separated around 20 January 2020 and thereafter were engaged in proceedings in the Family Court of Australia. On 23 February 2021 they entered into a financial agreement under Part VIIIA of the Family Law Act 1975 (Cth) (the Family Law Act).

11    In 2019 the appellant served two outlines of evidence of Ms Roberts in the proceedings below. They indicated that Ms Roberts would give evidence that, at the time the appellant was conducting his affair with Person 17, he and Ms Roberts were separated and he had moved out of their home. This was the position advanced by the appellant in his own evidence.

12    In June 2020, after separating from the appellant, Ms Roberts met with the respondents’ lawyers. On 7 April 2021, leave was granted to the respondents to issue a subpoena to give evidence to Ms Roberts on condition that they serve an outline of her evidence. An outline of her evidence was served on 12 April 2021 and filed on 3 May 2021. She gave evidence in the trial on 14 and 15 February 2022. Her evidence was that she and the appellant were not separated in 2017-2018 and the information in the outlines of her evidence filed by the appellant was not true. She had given this information to the appellant’s lawyers because he had asked her to lie. The primary judge in substance accepted this evidence at J[2589]-[2598] and found that in asking Ms Roberts to lie the appellant had threatened her with the loss of their children. This finding was not challenged in the appeal. It was one of the many matters detailed in Section 12 of his Honour’s reasons and treated as going to the appellant’s credit.

13    Ms Danielle Scott is a close, longstanding friend and confidante of Ms Roberts. Ms Roberts described Ms Scott as her best friend and gave evidence that they were accustomed to communicating daily, often many times in a day. Leave was also granted to the respondents on 7 April 2021 to issue a subpoena to Ms Scott and an outline of her evidence was served. The outline was filed, along with that of Ms Roberts, on 3 May 2021. However, she was not called as a witness. We infer from observations at J[2148] that the outline of Ms Scott’s evidence included a proposition that she was the sender of two emails to Person 17 in April 2018 (under the name Danielle Kennedy) that, the appellant admitted, he had drafted. However, this was not the subject of any express finding.

RS Group and its email server

14    RS Group Australia Pty Ltd (RS Group) was incorporated in 2011 and became the corporate vehicle through which the appellant was engaged, and received payment, for public speaking engagements. After the publication of the articles which were the subject of the proceedings below, that work dried up. At the time of the events relevant to these issues, RS Group was effectively dormant but had not been wound up. The directors of RS Group were the appellant, Ms Roberts and an accountant, Mr Adam Veale.

15    RS Group maintained a domain name and an email hosting account (the RS Group hosting account). The RS Group hosting account hosted three individual email accounts which were allocated to the appellant, Ms Roberts and Mr Veale. Each of them had access to the RS Group hosting account as an administrator, which meant that they could gain access to messages in all of the email accounts without entering an additional password.

16    Until at least April 2021, so the appellant contends, he was using his RS Group email address for confidential communications relevant to the proceeding below. These included, relevantly here, communications between the appellant and his legal team relating to the proceedings below. The appellant apparently continued to use his RS Group email address to send and receive confidential communications, and to leave messages stored in his RS Group email account, after his separation from Ms Roberts (including after it was clear that she was in contact with the respondents) and even though it was obvious that she could easily gain access to those messages.

17    It is not in doubt that both Ms Roberts and Ms Scott had access to the RS Group hosting account. Ms Roberts gave evidence in the trial that the appellant provided Ms Scott with the password. In 2020 and early 2021 the account was accessed many times by them, mainly by Ms Scott.

The Bromwich J proceeding

18    At some stage in the first half of 2021 the appellant formed the view that Ms Roberts or Ms Scott was providing information to the respondents about his confidential communications. On 20 May 2021 he issued a subpoena to Ms Roberts seeking 13 categories of documents, including any communications between her and the respondents providing copies of his communications with his solicitors. On 31 May 2021 Ms Roberts produced a substantial body of documents in response to this subpoena, including her communications with Ms Scott on a variety of topics, but nothing in these documents clearly indicated that she (or for that matter Ms Scott) was passing the appellant’s confidential communications to the respondents.

19    On 1 June 2021 the appellant commenced proceedings against Ms Roberts (the Bromwich J proceeding), seeking an order restraining her from using or disclosing any information derived from the appellant’s RS Group email address. RS Group was named as the second respondent. The appellant initially sought and was granted interlocutory orders ex parte requiring Ms Roberts to deliver to the Court’s registry any information she had obtained from the appellant’s RS Group email account and furnish affidavits deposing to matters including (i) compliance with the delivery up order and (ii) the obtaining of that information. Ms Roberts delivered certain documents and furnished an affidavit deposing to the matters about which she was ordered to provide an affidavit. Subpoenas were also issued to the corporate respondents in two of the three defamation proceedings and to their solicitors, MinterEllison, seeking any communications of the appellant that had been provided to them by Ms Roberts. Nothing was produced in response and no challenge was made to that response.

20    The appellant filed further interlocutory applications in the Bromwich J proceeding, two of which should be mentioned. One sought orders requiring Ms Roberts to file further affidavits, and an order that she be examined on his behalf in relation to her compliance with the earlier interlocutory orders. Ms Roberts did not resist the application to be examined but did submit that the basis for it was inadequate. The other interlocutory application sought to join Ms Scott and her husband (Mr Pill) with a view to seeking orders against them of the same nature as those that had been made against Ms Roberts. The present respondents (who were the respondents in the defamation proceedings) were not joined or sought to be joined.

21    On 21 January 2022 Bromwich J made orders dismissing these interlocutory applications. His Honour published detailed reasons which engaged closely with the documentary and affidavit evidence concerning access to the RS Group hosting account and whether it might have been the source of various material referred to in communications by Ms Roberts: Roberts-Smith v Roberts [2022] FCA 18. An application for leave to appeal was dismissed by Wigney J on 16 May 2022: Roberts-Smith v Roberts [2022] FCA 524.

22    Final orders were made in the Bromwich J proceeding on 3 June 2022. An order consistent with the final relief the appellant had sought was made. We infer from the absence of any further reasons and the order for costs in Ms Roberts’ favour that she did not oppose an order restraining her from using or disclosing information obtained from the appellant’s email account. The proceeding had been a failure in so far as it was intended to establish that Ms Roberts actually had used or disclosed any such information.

23    Affidavit evidence filed in the Bromwich J proceeding was tendered on the re-opening application. It was admitted subject to a direction that the affidavits were not to be treated as evidence of the truth of statements made in them; however, part of one of the appellant’s affidavits was accepted as an accurate summary of certain business records which recorded logins to the RS Group hosting account (and which are also in evidence before us). What these affidavits do show, which is significant for reasons developed below, is that at the time of their filing (between 10 June 2021 and 31 May 2022), the appellant had made inquiries, issued subpoenas and developed a fairly detailed case theory as to why it should be concluded that Ms Roberts (or Ms Scott at her behest) had obtained confidential information from his email account without his permission and used it to inform the respondents in the defamation proceedings.

The recording

24    In the early hours of 15 March 2025 Mr Paul Svilans, the principal of the appellant’s former firm of solicitors, received an email from an unidentified person using the address ellroyferris@proton.me (the 15 March email). The email was headed “Paul: secret McKenzie recording” and attached an audio file (the recording). The text of the email said:

Pls acknowledge receipt.

All the best.

25    There followed what purported to be a transcript of the conversation recorded in the recording.

26    The appellant’s solicitor, Ms Monica Allen (who has moved to a different firm but retained carriage of the matter) obtained the email and the recording. She and Mr McKenzie in their respective affidavits have essayed their own transcripts. It is common ground that the recording captures part of a conversation between Mr McKenzie and Person 17. Mr McKenzie’s transcript, which appears to be accepted as essentially accurate, is as follows.

NM:    You (indecipherable) um Danielle and Emma like trying to tell ya yet again I know you won't burn me so .. do not tell Dean please or Monique (indecipherable) that I've told you this.

You know they, they've actively like briefing us on his legal strategy in respect of you like this this and yeah we're not learning like like we anticipated most of it. One or two things now we know, which is which is helpful. But it's. uh. The point. The reason I told you that was to say like you know we've got this, and uh and they're not hostile to you despite your worst fears. They're not. But 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.

P17:    yeah Maybe that's what has to happen like so uh like –

NM:    (voice raised) I shouldn't - I shouldn't tell you. I've just breached my fucking ethics in doing that like this is where like, this has put me in a shit position now like. If if Dean knew that and Peter knew that I'd get my arse fucking handed to me on a platter like –

P17:    (talking over) oh and that's where I say you know you've got to trust me as well and I've not done (NM talks over "well I do") anything –

NM:    (talking over) that's why I told you.

P17:    (talking over) I know I know so –

NM:    (talking over) I wouldn't tell anyone else. I haven't told anyone like no one else I tell this. No one knows about the police investigation. It's a sensitive ongoing police investigation. Phone taps, task force, there's a new - there's a whole new task force is being stood up in Brisbane. An entire new task force. There's police living in his apartment block under assumed identities as we speak. Like. The guy is fucked.

The interlocutory application

27    As noted earlier, on 27 March 2025 the appellant filed an interlocutory application seeking leave to reopen his case in the appeal in order to file an amended notice of appeal and adduce further evidence.

28    The evidence sought to be adduced was contained in an affidavit of Ms Allen of the same date in which Ms Allen identified the voices in the recording and provided a transcript of it. Exhibited to that affidavit was the 15 March email and the recording, the affidavits filed in the Bromwich J proceedings (mentioned above) and the transcript of Ms Roberts’ evidence in the proceedings before the primary judge. The affidavit was read, and the exhibit tendered, on the interlocutory application. A second affidavit was filed to correct some minor errors in the first but was not ultimately relied upon. Several documents, which do not need to be detailed here, were tendered in connection with the cross-examination of Mr McKenzie.

29    The respondents relied on an affidavit of Mr McKenzie dated 14 April 2025, which exhibited a substantial bundle of documents and two smaller bundles (separated out for reasons of confidentiality). There was also a second affidavit (dated 24 April 2025), which corrected an error in the first. An affidavit of one of the respondents’ solicitors, annexing various background material, was admitted provisionally but in the end we did not understand the objection to that material to be pressed.

The proposed amended notice of appeal

30    The proposed amended notice of appeal would add a new ground 17 (which we refer to below as proposed ground 17) and particulars 35-38, as follows.

Miscarriage of justice

17.     There has been a miscarriage of justice and denial of a fair trial to the Appellant in the proceedings below by reason of the Second Respondent’s misconduct.

…

Miscarriage of justice and unfair trial (Ground 17)

35.    The Second Respondent, Mr McKenzie, engaged in wilful misconduct in the proceedings below by improperly and unlawfully obtaining and retaining information concerning the Appellant’s legal strategy concerning the trial that was confidential and privileged to the Appellant.

36.    The Appellant was unaware of the Second Respondent’s misconduct until after the trial and the hearing of the appeal.

37.    There is at least a real possibility that, had the Second Respondent not engaged in such misconduct, the result of the trial would have been different, in that:

(a)    Had the Second Respondent’s misconduct been known, the Appellant would have moved the Court below to strike out the Respondents’ defences by reason of that misconduct, the outcome of which cannot now be ascertained;

(b)    By reason of the Respondents’ improper access to the Appellant’s confidential and legally privileged information, there is a real possibility that they made forensic decisions below, which they would not otherwise have been in a position to make, which were to the advantage of the Respondents and/or the disadvantage of the Appellant;

(c)    Had the Respondents’ improper access to his confidential and legally privileged information been known, there is a real possibility that the Appellant would have made different forensic decisions at trial to his benefit;

(d)    There is a real possibility that the primary Judge’s assessment of the credit of Ms Roberts and/or Person 17 would have been different;

(e)    Because there is a real possibility that his Honour’s assessment of Ms Roberts’ and/or Person 17’s credit may have been different, there is also a real possibility that his Honour’s assessment of the Appellant’s credit in relation to one or more, or all, issues in the trial may have been different;

(f)    Because there is a real possibility that his Honour’s findings as to credit may have been different, there is a real possibility that his Honour’s findings of fact in relation to the defences of justification and contextual truth may have been different.

38.    In the circumstances, including the seriousness of the misconduct, the nature of the information improperly obtained, and its concealment until after the conclusion of the trial and appeal, it is in the interests of justice – both as between the parties and more broadly in relation to the administration of justice – that the matter be retried.

(Emphasis in original.)

31    It would also add a new prayer 3A seeking, in the alternative to the entry of judgment for the appellant, an order that a new trial be ordered pursuant to ss 28(1)(f) and 30 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act).

32    In the light of the approaching retirement of Katzmann J, mandated by s 72 of the Constitution, orders were made for the issues raised by the interlocutory application to be dealt with expeditiously. The matter was listed on 1 and 2 May 2025 for hearing of the interlocutory application and, if leave to amend were granted, the substantive argument on the new ground of appeal.

33    Because the question of leave and the substantive merits were dealt with at the same hearing it became common ground that, if leave to re-open and amend the notice of appeal were granted, the further evidence to be adduced if leave were granted would comprise all of the evidence adduced on the leave application.

The issues

34    Although the appellant seeks leave to adduce further evidence in the appeal under s 27 of the FCA Act, the evidence in question does not relate to any fact already in issue. The case is therefore not governed by the usual approach, in which the proposed additional evidence would be admitted only if it was not available to the party concerned during the trial and its admission during the trial would have been likely to change the result: see eg Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16] (Griffiths, Mortimer and White JJ).

35    Instead, the appellant seeks to run a completely new point which turns, not on any alleged error by the primary judge in determining the case that was pleaded and run, but on conduct during the proceeding itself which is alleged to have resulted in a miscarriage of justice. In a sense, therefore, the point is one that is to be decided at first instance and beginning with a clean slate. Cases “where a trial has miscarried through misdirection, misreception of evidence” and cases of “surprise, malpractice or fraud” have been recognised as standing outside the general rule in relation to the introduction of “fresh evidence”: Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 140 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) (Quade).

36    In Quade, it was common ground that there had been a significant failure by the successful party at first instance to comply with its discovery obligations. The issues argued in the High Court therefore concerned the circumstances in which a failure of that kind would make it appropriate to order a new trial, rather than any preliminary discretionary issue concerning amendment or the admission of further evidence. The Court in Quade also did not need to deal with any contested issue concerning what constituted “surprise, malpractice or fraud”.

37    In a case such as the present, the discretion to admit further evidence under s 27 of the FCA Act is effectively subsumed in the question whether leave should be granted to amend the notice of appeal. If it appears on an interlocutory basis that there is a cogent claim that a miscarriage of justice occurred, and on balance the appellant ought to be allowed to raise that claim despite the very late stage at which it is sought to be raised, it is hard to see how leave to adduce the evidence relevant to that claim could properly be refused (assuming that evidence is otherwise admissible). Otherwise, there is no good reason to admit the evidence in the appeal.

The discretion to permit re-opening

38    As to whether there should be a grant of leave to amend the notice of appeal in the manner proposed, the following issues need to be considered:

(a)    the prospects of success of the proposed new ground of appeal;

(b)    whether the raising of the new point at this stage would cause unfairness to the respondents; and

(c)    whether there is a sufficient explanation for the alleged misconduct by Mr McKenzie not having been raised during the trial or earlier in the appeal process.

39    The first of these issues necessarily dominates the analysis, for two reasons. First, if there were a strong case that the trial miscarried and the judgment should be set aside, the interests of justice would ordinarily demand that that case not be shut out in reliance on discretionary considerations. Secondly, even though the analysis of whether such a miscarriage occurred that requires a new trial is evaluative rather than discretionary (cf, in the context of abuse of process, GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 at [15] (Kiefel CJ, Gageler and Jagot JJ), [95] (Steward J), [161] (Gleeson J)), there is considerable overlap between the issues going to whether proposed ground 17 has substantial prospects of success and the other discretionary factors.

Miscarriage of justice

40    So far we have adopted the terminology of “miscarriage of justice” which appears in proposed ground 17. However, while this is a well-recognised phrase in criminal appeals, such language does not appear as an organising principle or as a description of an identified category of civil cases in the authorities to which we have been referred. The Court in Quade, as noted earlier, referred to cases of “surprise, malpractice or fraud” as an exception from the general rule in relation to the reception of fresh evidence. Their Honours continued (at 141):

In McCann v Parsons … Dixon C.J, Fullagar, Kitto and Taylor JJ. pointed out that the various grounds upon which an appellate court proceeds in granting the remedy of a new trial “have been settled by practice but … have never become completely stereotyped; they have always possessed some flexibility and have been governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end”.

(Citations omitted.)

41    At 142-143, focusing on the particular issue that arose in that case, their Honours said:

It is neither practicable nor desirable to seek to enunciate a general rule which can be mechanically applied by an appellate court to determine whether a new trial should be ordered in a case where misconduct on the part of the successful party has had the result that relevant evidence in his possession has remained undisclosed until after the verdict. The most that can be said is that the answer to that question in such a case must depend upon the appellate court's assessment of what will best serve the interests of justice, “either particularly in relation to the parties or generally in relation to the administration of justice”. In determining whether the matter should be tried afresh, it will be necessary for the appellate court to take account of a variety of possibly competing factors, including, in addition to general considerations relating to the administration of justice, the degree of culpability of the successful party, any lack of diligence on the part of the unsuccessful party and the extent of any likelihood that the result would have been different if the order had been complied with and the non-disclosed material had been made available.

(Citations omitted.)

42    One of the cases cited in this passage was McDonald v McDonald (1965) 113 CLR 529 (McDonald), where Barwick CJ said (at 533):

But if the fresh evidence does not satisfy all these requirements so that a new trial could not be ordered on the basis of the discovery of fresh evidence, but does tend to establish that the verdict was obtained by fraud or by surprise or that there has been subornation of witnesses, the Court may grant a new trial upon a motion therefor, though a separate proceeding is clearly the preferable course, if the Court itself, on a trial of such issues, finds the fact of the fraud, the surprise or the subornation of witnesses, as the case may be, to be proved to its reasonable satisfaction. It is not necessary in that event that the evidence of the fraud, the surprise or the subornation, though it should be “fresh”, should be evidence which would be admissible on the issues between the parties in the action; or that it should be found to be probably conclusive of those issues. The Court's conclusion upon the fresh evidence before it that the verdict was obtained by fraud, by surprise or that witnesses were suborned, is sufficient to justify setting aside the verdict and ordering a new trial. Whether or not the Court does so must finally depend on the Court's view as to whether or not the interests of justice, either particularly in relation to the parties or generally in relation to the administration of justice, require such a course.

(Citations omitted.)

43    In the same case Menzies J said (at 542):

The foregoing authorities do, I think, justify the proposition that, if a new trial is sought upon the ground of the discovery of fresh evidence which, if believed, would show that a fraudulent case has been presented to the Court at the original trial, and if it is also shown that this evidence was not available at the original trial notwithstanding the exercise of reasonable diligence, then a new trial will be ordered if the case made out is such as to satisfy the Court that, in the interests of justice, the matter in question should be tried afresh.

44    What we take from these authorities is that cases where some form of misconduct in the course of a trial is advanced as a reason why the judgment should be set aside involve consideration of whether, “in the interests of justice, the matter in question should be tried afresh”. The inquiry therefore does not end with the identification and proof of misconduct. Deciding where the “interests of justice” lie is, as noted earlier, an evaluative exercise. Consistently with what was said in Quade, that evaluation needs to take account of:

(a)    general considerations relating to the administration of justice (including, we would interpolate, the public interest in the finality of litigation);

(b)    the degree of culpability of the successful party;

(c)    any lack of diligence on the part of the unsuccessful party; and

(d)    the extent of any likelihood that the result would have been different if the relevant misconduct had not occurred.

45    As to the last of these points, the Court in Quade added (at 143):

While it is not necessary that the appellate court be persuaded in such a case that it is “almost certain” or “reasonably clear” that an opposite result would have been produced, the question whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that that would have been so.

46    The expression “almost inevitably” in this passage leaves open the possibility that there can be cases where what has occurred is so antithetical to the proper administration of justice that the result cannot be allowed to stand, even though it is not possible to point to any likely effect on the result. This, in our view, explains the result in Stead v State Government Insurance Commission (1986) 161 CLR 141 (Stead), an authority relied on by the appellant, where the trial judge told counsel he did not accept a certain witness (thereby leading counsel not to make submissions about the witness) but then did accept the witness’s evidence on the point in question. Although there was no way of knowing whether the submissions counsel would have made any difference, the High Court held that a new trial should be ordered, observing (at 147) that “all that the appellant needed to know was that the denial of natural justice deprived him of the possibility of a successful outcome”. The point to be noted about Stead (which has often been cited in applications for public law remedies for breach of the principles of procedural fairness) is that the error of the primary judge led to a failure by the court to provide a fair hearing on the evidence presented. Unless shown to be immaterial, such a failure must lead to a new trial in order for the system of justice to retain public confidence. That conclusion can rarely if ever be reached in a case such as the present, where the alleged misconduct is committed by a party and the asserted vice is the obtaining of an unfair advantage in the forensic contest: in such a case, the interests of justice call for a new trial only if there is shown to be “at least a real possibility” that the result was affected.

47    The appellant also relied on the different approach that was apparently taken in Clifton (Liquidator) v Kerry J Investment Pty Ltd trading as Clenergy [2020] FCAFC 5; 379 ALR 612; 143 ACSR 1 (Besanko, Markovic and Banks-Smith JJ) (Clifton). There, the appellant liquidators had commenced proceedings seeking to recover amounts for unfair preferences and (as became apparent as the result of a cross-appeal) had failed to make any real attempt to discover documents contained in several repositories. The failure had not been remedied by the time judgment was delivered in the appeal (see at [197]). Had the failure become apparent during the trial, orders could have been made to achieve fairness (eg a stay of the proceeding) (at [198]). Had the failure emerged at the appellate stage and been remedied, the Full Court could have had regard to the nature and effect of the previously undiscovered documents (at [201]). However, neither of these things had happened. The Full Court described these circumstances (at [196]) as “unique and different to those which were presented to the Court in Quade and the other cases to which we have been taken”. Their Honours’ resolution, at [203], was to conclude that:

… unless this Court is satisfied that there is no realistic possibility of there being documents which might be deployed by the innocent parties to meet the defaulting party’s claims, the defaulting party’s claims (i.e. the appeals) should not be considered by this Court because to do so would be to consider them on a hypothetical and potentially false basis.

48    The approach settled upon in Clifton was thus a solution to a very specific problem: there was a fundamental failure to comply with discovery obligations; the default had not been remedied (and its significance to the result thus could not be assessed); and it was the defaulting party that had brought the appeal. The Full Court in Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. [2021] FCAFC 77; 389 ALR 612; 159 IPR 58 at [385] (Katzmann, Beach and Markovic JJ) observed that what had been said in Clifton at [203] was “not an exposition of general principle, but an application of existing principle”. In short, Clifton was not a case where the innocent party was seeking a new trial; rather, the defaulting party was seeking to overturn a result that had been reached despite its default and without having remedied that default.

49    Stead and Clifton therefore do not assist in the resolution of the present case. The correct approach is that a new trial should be ordered only if the Court is persuaded that Mr McKenzie engaged in “wilful misconduct” of the kind alleged; there is at least a real possibility that, absent that misconduct, the result in the Court below would have been different; and, in all the circumstances, the misconduct is such that it is in the interests of justice for there to be a new trial.

The proposed new ground and its prospects of success

The allegation

50    Because proposed ground 17 seeks to raise a new point, which this Court would be required to decide at first instance, it is in substance a pleading. Further, because the allegation is a serious one, the respondents are entitled to proceed on the basis that the case they need to meet is the case set out in the proposed ground and its particulars. Accordingly, if that case (assuming it can be made good by evidence) is not sufficient to make out a miscarriage of justice in the relevant sense, that is a powerful reason why the proposed ground should not succeed at a substantive level and why, therefore, leave to raise it should not be granted.

51    The proposed ground alleges that there has been a miscarriage of justice and denial of a fair trial “by reason of the Second Respondent’s misconduct”. The misconduct is described as “wilful” in proposed particular 35 and identified as having been committed:

… by improperly and unlawfully obtaining and retaining information concerning the Appellant’s legal strategy concerning the trial that was confidential and privileged to the Appellant.

52    There are several points that should be noted about this allegation.

53    First, “misconduct” is not a technical term or a word that has an established meaning in this context. There is no established standard by which to assess whether something amounts to “misconduct” and the submissions of the appellant did not seek to develop criteria for such an assessment. Journalistic ethics were mentioned in submissions, but it is hard to see why the standard of behaviour expected of a litigant should depend on their profession.

54    The matters alleged against Mr McKenzie do not involve a breach of any rule or duty imposed by the Court (cf discovery obligations, which had been breached in Quade and Clifton). We consider that whether his behaviour is to be labelled as “misconduct” or “wilful misconduct” must, despite the risk of circularity, be taken to turn on whether it is sufficiently egregious or inimical to a fair trial as to amount to a reason why the judgment should be set aside.

55    Secondly, the alleged misconduct consists of “obtaining and retaining” information that was “confidential and privileged to the appellant”. No allegation is made that Mr McKenzie used any confidential and privileged information—for example, by giving it to his counsel for use in cross-examination or by using it to prompt further lines of inquiry.

56    This makes the alleged unlawfulness or impropriety difficult to identify. Merely being the recipient of the other side’s confidential information and “retaining” it (whatever that means) might involve doing things that would be open to criticism, but does not in itself constitute “misconduct” of a kind that would raise questions about whether the trial miscarried. It may be accepted that information residing in Mr McKenzie’s mind could have the potential to affect his instructions to his lawyers; however, unless the information was deployed consciously (which, as we have observed, is not pleaded), it is very hard to see how “wilful misconduct” arises.

57    We accept that actively setting out to obtain the other side’s confidential information by surreptitious means, with the intention of using it to advantage, might be regarded as “wilful misconduct”. This may be what particular 35 is intended to convey. However, putting aside for the moment whether any such action has been proved, this is not misconduct of a kind that is capable of calling for the judgment to be set aside unless there is shown to exist “at least a real possibility” that the result was affected.

58    Thirdly, rather than directly allege that Mr McKenzie used information that was confidential to the appellant, or that in some other identified way his possession of the information affected the trial, the appellant alleges in particular 37 that there is “at least a real possibility” that, absent his misconduct, the result would have been different. Paragraphs (a) to (f) of particular 37 then suggest things that might have happened if the misconduct had been known, or that might have played out differently if the appellant’s confidential information had not been in the hands of Mr McKenzie. The points to be observed for present purposes are:

(a)    Paragraphs (a) and (c) do not address a relevant counterfactual at this stage of the analysis: they posit the misconduct being discovered during the trial (and the appellant doing something about it) rather than the misconduct not occurring.

(b)    Paragraphs (d), (e) and (f) (which chart the potential effect of the trial judge making different assessments of credit) can only be the consequence of one party or the other making different forensic decisions. Relevantly, it would seem, they follow from para (b).

(c)    These paragraphs raise only speculative possibilities. The appellant has not taken on the task of proving that any of these things would have happened.

(d)    For reasons explained above, we do not accept that any onus falls on the respondents to disprove the impacts suggested in particular 37.

(e)    The appellant need only prove the existence of a “real possibility” that the result was affected in one or more of the ways set out in particular 37 (which, in substance, boils down to para (b) and its potential consequences). However, he embarks on that task without having alleged any particular use of his confidential information by Mr McKenzie.

59    The “real possibility” that the result of the trial would have been different must therefore be inferred from the mere possession of confidential information by Mr McKenzie. It is not inconceivable that that might be achieved. However, it could only be achieved by making a convincing evidentiary link between something known to Mr McKenzie and something of significance that occurred in the trial. Given the seriousness of the allegation against Mr McKenzie and the consequences of upholding it, it is unfair to the respondents to attempt to make such a link (which amounts to constructing an inference that the information was used in some way) without having pleaded it.

60    To put the point concerning the possibility of a different outcome in a slightly different way, we consider that what must be alleged and proved is an impact on the trial process that had a real potential to affect the outcome (comparable to, for example, a failure to give proper discovery or the suborning of a witness). It is not sufficient to point to something improper and rely on the possibility that it might have had an impact on the trial process.

61    The respondents did not expressly advance a deficiency in pleading as a reason why leave should not be granted to raise proposed ground 17 (although they did so implicitly in so far as there was argument concerning the onus of proof of a possible effect on the result). However, in seeking to understand in detail how the allegation is constructed, we have come to the view that the case as encapsulated in the proposed amended notice of appeal is not sufficient to establish that the judgment below should be set aside and a new trial ordered. Given what we have said above about the need for clear pleading, it follows that proposed ground 17 would not succeed.

62    Fourthly, the reference in proposed ground 17 to information that was “privileged” was expanded upon in submissions by reference to legal professional privilege. The reference to legal professional privilege may be a distraction, because legal professional privilege is an immunity against disclosure of certain communications rather than a right that founds a cause of action: Glencore International AG v Commissioner of Taxation [2019] HCA 26; 265 CLR 646 at [12], [31]-[34] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (Glencore). If privileged communications between the appellant and his lawyers were handed over to Mr McKenzie by persons who had access to them, the existence of privilege per se did not constrain the uses that he could make of that information. On the other hand, the fact that the communications were confidential might have provided a basis on which his use of them could be restrained by equitable remedies (cf Glencore at [34]) or a basis on which the primary judge might have made orders seeking to protect the integrity of the trial. That quality of confidentiality also makes it possible, subject to the issues canvassed above, that receiving and dealing with the communications might attract the label “wilful misconduct” for the purposes of the present dispute.

63    That said, however, we note that the appellant put his case firmly on the basis that the communications in question were “privileged” (that is, subject to legal professional privilege) and this was the case that the respondents sought to meet. He did not develop any broader argument concerning confidentiality.

64    Fifthly, it was common ground that the appellant carried the burden of proving that Mr McKenzie engaged in misconduct. That includes proving that the materials Mr McKenzie is alleged to have improperly obtained were in fact subject to legal professional privilege. That is ordinarily done by adducing evidence from a lawyer of the dominant purpose of the relevant communications. In this case the appellant did not adduce any such evidence. Ms Allen’s affidavits were silent on this matter.

The evidence

The recording

65    The audio file containing the recording that was sent by email to Mr Svilans is dated 14 March 2025. It is clear that the recording is of part of a longer conversation and has been made by editing a longer audio file. One of the implications of this point is that the date of the original recording is not fixed by any documentary evidence. Mr McKenzie accepts that the recording is of part of a conversation between him and Person 17. He deposed, based on the content and his recollection of surrounding events, that the conversation occurred around March or April 2021. Although a letter from the respondents’ solicitors of 24 March 2025 (presumably sent on Mr McKenzie’s instructions) asserted that the conversation occurred on 24 April 2021, Mr McKenzie’s position under cross-examination remained that he was unable to be precise about when the conversation occurred. We accept this. The only evidence as to the timing of the conversation is that of Mr McKenzie.

66    Mr McKenzie gave evidence that he had a number of (usually long) conversations with Person 17 over a long period beginning around 2018. There is no way of knowing who initiated the conversation in issue here. However, it is apparent from the contents of the recording that Mr McKenzie was seeking to reassure Person 17 and strengthen her resolve in relation to giving evidence in the defamation proceedings. He was clearly concerned about her willingness to enter the witness box and probably her mental state more broadly. The inference that Mr McKenzie was worried about Person 17 is supported by material the subject of a suppression order made on 1 May 2025.

67    It is also apparent from the content of the recording that Mr McKenzie had been in contact with “Danielle and Emma” (ie Ms Scott and Ms Roberts) and one of the things he was seeking to reassure Person 17 about was their attitude. According to his evidence (which was not challenged in this respect), one of the things Person 17 expressed concern about was how she would be perceived when her evidence about her affair with the appellant was made public. The fact that Ms Roberts and Ms Scott were a topic of conversation indicates that the conversation probably occurred at a time when Person 17 was aware that they were likely to be giving evidence for the respondents. Mr McKenzie also gives evidence (which is not challenged) that at this time Person 17 was “very agitated and concerned” about how she would be viewed in relation to Ms Roberts. Even if we are not correct about this aspect of the timing, it is clear that Mr McKenzie’s contact with Ms Roberts and Ms Scott lies behind his statement “they’re not hostile to you despite your worst fears”.

68    The fact that Mr McKenzie was clearly seeking to reassure an important potential witness, who (in his view at least) needed a lot of support, indicates that he had an incentive to exaggerate both his confidence that the respondents would be successful (and Person 17 would come out of it well) and the depth of knowledge upon which that confidence was based. He may also have had an incentive to try to earn Person 17’s trust by suggesting that he was taking her into his confidence and risking his own position. Mr McKenzie was a very experienced investigative journalist accustomed to getting the most out of his sources. For example, when cross-examined about a conversation with Ms Scott, he explained how he gave an impression of excitement in order not to reveal that he already knew some of what he was being told. This is a reason why the recording should be treated with caution in so far as it is relied on as an admission of wrongdoing or otherwise as evidence that Mr McKenzie really was receiving briefings on the appellant’s “legal strategy”.

69    A further, and important, reason for treating the recording with caution is that the anonymous sender of the 15 March email saw fit to provide only a snippet of what was clearly a longer conversation. There is no way of knowing how long the whole conversation was and what topics were being discussed before and after this decontextualised snippet. Nor can one be confident that the contents of the recording have not been doctored by removing sections or splicing together different parts of a recorded conversation. Although we admitted the recording into evidence despite these problems, for reasons which are set out separately, they clearly go to its weight.

70    Additionally, Mr McKenzie’s statements in the recording are somewhat elliptical. In his first affidavit, despite having no clear recollection of the conversation, Mr McKenzie attempted to reconstruct (from his recollection of events and his own understandings in March-April 2021) what he must have meant by them. We admitted these passages over objection but accept that they are of limited assistance.

71    Before turning to the potentially significant parts of the recording, we should say something further concerning Mr McKenzie’s evidence. Mr McKenzie was cross-examined extensively on the contents of his affidavit and on several other issues. We reject the submission that he should be treated as a witness of no credit and generally accept his evidence. He acknowledged his limited recollection of events and conversations and answered the questions put to him with care. We did not perceive any significant contradictions or implausibilities in his evidence.

72    The potentially significant parts of the recording are as follows.

(a)    “ … they’ve actively like briefing us on his legal strategy in respect of you … One or two things now we know, which is … helpful.” “They” are fairly clearly Ms Roberts and Ms Scott. “Briefing” suggests conversations and leaves open whether Mr McKenzie was being provided with documents. The meaning of “legal strategy” is unclear, but it refers only to the strategy “in respect of” Person 17. Use of the term “strategy” makes it very unclear whether Mr McKenzie was intending to suggest that he had access to any of the appellant’s confidential legal advice or his lawyers’ plans for the trial. Mr McKenzie deposes that he could not have intended to convey that because he had no such access. This is a reconstruction, but (as will appear below) we have come to the conclusion that it is correct.

(b)    “ … they’re not hostile to you despite your worst fears.” In context, this should be understood to be referring to the attitude of Ms Roberts and Ms Scott. It is not suggestive of any insight, let alone one improperly obtained, into the appellant’s thought processes or trial strategy.

(c)    “ … do not tell Dean please or Monique … that I’ve told you this” and “ … I shouldn’t tell you. I’ve just breached my fucking ethics in doing that … this has put me in a shit position now like … if Dean knew that and Peter knew that I’d get my arse fucking handed to me on a platter like …” Monique Cowden is a barrister who had been retained to act for Person 17. Dean Levitan and Peter Bartlett are solicitors at MinterEllison who were acting for the respondents in the defamation proceedings. These passages are fairly strongly suggestive of a consciousness on Mr McKenzie’s part that the disclosures he had made to Person 17 would be of concern to his lawyers (and to Person 17’s lawyer) and constituted a breach of “my ethics”. However, it is difficult to reach any view as to where this leads because the meaning of the statement is obscure. The reference to “ethics” may be to journalistic ethics, but the nature of any relevant breach has not been explored in submissions and Mr McKenzie did not advance this interpretation. The reasons why Mr McKenzie thought his lawyers would be critical might be to do with a perception of wrongdoing in relation to disclosures he had made; however, other explanations are available, including others not posited or recalled by Mr McKenzie himself. For example, it is likely that he had been told by his solicitors not to discuss the evidence of any witness with another witness.

73    In his oral submissions, senior counsel for the appellant accepted that the recording in itself did not take matters very far. The way it was put was:

We start with the admission, your Honour, and then we go back to look, through that prism, at some of the material that we now know about, in order to draw the inferences.

The other material

74    In addressing the evidence relevant to proposed ground 17, it is necessary to keep in mind two important principles which may pull in opposite directions. One is the rule embodied in s 140 of the Evidence Act 1995 (Cth), which was heavily relied upon by the appellant in his submissions in the appeal alleging errors by the primary judge. Here, the allegation concerning Mr McKenzie is pitched at such a level and has such significant consequences that it cannot be taken to have been made out on the basis of what Dixon J referred to in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 as “inexact proofs, indefinite testimony, or indirect inferences”. The other is the principle in Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970 (Lord Mansfield CJ) (Blatch v Archer), that evidence on a contested issue is to be weighed according to the relative capacity of the parties to adduce it. Where a matter is particularly within the knowledge of the party that does not bear the onus of proof, relatively slight evidence from the other party may be sufficient to regard the onus as satisfied unless that evidence is rebutted by evidence from the party who has that particular knowledge. Both of these principles can apply at the same time, as discussed recently in Hassan (formerly AFX21) v Minister for Home Affairs [2025] FCAFC 57 at [52]-[54] (Katzmann and Kennett JJ).

75    The appellant invoked Blatch v Archer in connection with several aspects of the factual controversy which we discuss below. It was submitted that, in the absence of any evidence from Ms Roberts or Ms Scott, the inference would readily be drawn that information that came into the possession of Mr McKenzie was obtained by them from the appellant’s RS Group email address. However, in order for that absence of evidence to have the significance contended for, it was necessary for some evidence to be adduced by the appellant that was capable of making out the allegation that he sought to advance. Further, in some important respects, it clearly was within the capacity of the appellant to lead evidence in support of his allegation if such evidence existed, but that evidence was not led: for example, as to whether particular information actually was to be found in emails in his RS Group email account, and as to the circumstances relied on for the contention that communications were privileged.

76    The appellant’s argument depends on the following chronology, which is largely undisputed.

(a)    Ms Scott, her husband or Ms Roberts logged on to the RS Group hosting account on a large number of occasions (no less than 101 in the case of Ms Scott or her husband) between 20 January 2020 and 27 April 2021. Access logs show that the email hosting account was accessed by someone associated with an email address apparently belonging to Ms Scott’s husband:

(i)    regularly until 30 April 2020;

(ii)    twice on 11 August 2020;

(iii)    twice on 16 December 2020 (which appears to be related to the renewal of the RS Group hosting account at Ms Roberts’ initiative and a change of payment details for the account);

(iv)    on 28, 29 and 30 March 2021; and

(v)    on 22 and 27 April 2021.

(b)    Mr McKenzie had at least two conversations with Ms Scott, in August 2020. (The appellant contended that Mr McKenzie also phoned Ms Roberts during this time, and there is evidence that may support this, but Mr McKenzie did not recall the conversation and we were not referred to any evidence of Ms Roberts on the issue.)

(c)    Mr McKenzie received images from Ms Scott in March 2021, which he forwarded to Mr Levitan. On 12 March 2021 he sent a long email to Mr Levitan containing his own analysis.

(d)    Mr McKenzie and his lawyers had a meeting with Ms Roberts and Ms Scott either on 14 March 2021 (on his account) or in late March (on Ms Roberts’ account). Mr McKenzie sent another lengthy email summarising and analysing evidence to his solicitors on 22 March 2021.

(e)    Ms Roberts recalled another meeting with Mr McKenzie and “most of the lawyers” in April 2021. He did not recall that meeting. We have not found it necessary to resolve this difference.

77    Ms Roberts accepted in cross-examination during the trial that Ms Scott had accessed the RS Group email hosting account at least 100 times. The appellant submits that Ms Scott had “no legitimate interest in [his] personal legal correspondence”, and her access at the times outlined above is therefore strongly suggestive of a purpose of “forensic misuse of privileged material”. It is necessary to note, however, that access to the RS Group email hosting account does not necessarily equate with looking at the appellant’s emails: access to the hosting account gave access to all three of the individual email accounts. It cannot simply be assumed that, on every occasion (or indeed any occasion) when Ms Scott logged on to the RS Group email hosting account, she looked at emails passing to and from the appellant’s individual account.

78    It is also appropriate to note that Ms Roberts (who often sought and received assistance from Ms Scott) had reasons to investigate the appellant’s emails at various times. She gave evidence in chief of having gained access to the appellant’s RS Group email account, from a computer in the chambers of her senior counsel, for the purpose of complying with a subpoena. Counsel for the Commonwealth objected to broad questions as to whether Ms Roberts had accessed the account on other occasions and her knowledge about access by Ms Scott, on the ground that the answer might reveal law enforcement matters. An affidavit that Ms Roberts swore in the Bromwich J proceeding, to which she was taken in cross-examination in the defamation proceedings, included reference to checking the appellant’s email account in April 2020 to look for information about a jointly owned property. The same affidavit described how she opened another email about a purchase the appellant had made using frequent flyer points, and took a screenshot, because it suggested the appellant had an address in Sydney of which she was previously unaware. This excited her interest because of the Family Court proceedings and the arrangements for shared custody of her and the appellant’s children.

79    Against that background, the parties’ submissions joined issue on six particular points (in addition to the recording, discussed above) which, the appellant contended, indicated that privileged communications from the appellant’s RS Group email account were finding their way to the respondents. This (as we understand it) is attributed to “wilful misconduct” on the part of Mr McKenzie because it was he who had established contact with Ms Scott and Ms Roberts and became the main channel of communication between them and the respondents’ camp.

80    While some reference was also made to a belief on the part of the appellant that improper access to his RS Group email account must have been behind the terms of a notice to produce that was issued to him on 19 April 2021, this was not developed before us by the appellant except by way of an observation that the respondents had not disproved the connection. This overlooks the point that, in the light of the principles referred to above, in this application it was necessary for the appellant to prove something more than a correlation between documents sought and documents that resided in his email account. Absent evidence to the contrary, it is possible that the documents that were sought existed in other repositories, were referred to in other documents the respondents had seen, or had been mentioned by persons who had spoken to the respondents. It is not necessary to refer in any detail to the evidence (to which we were taken by the respondents) that most, if not all, of the documents sought actually had come to their attention by other means and there was, in any event, an innocent explanation available for all of them. Further, the suggestion that access to material in the appellant’s RS Group email account informed the notice to produce was central to the case advanced on the interlocutory applications in the Bromwich J proceeding (see his Honour’s reasons at [39]). The evidentiary hurdle in that context was lower than the one which the appellant now confronts. Yet his Honour rejected the appellant’s case at [104] of his reasons on the basis that it was “shown not to be built on well-founded belief”. The only justification for considering this case again is the emergence of the recording, which (for reasons outlined above) does not constitute strong evidence of wrongdoing and which has no apparent connection to anything relating to the 19 April 2021 notice to produce.

81    Before turning to the six matters on which the parties made submissions, we would make one further point about the scope of the allegedly privileged material that the appellant contends Mr McKenzie improperly obtained. The appellant submitted in writing that “[f]rom late 2018 until around 20 April 2021, the Appellant mainly corresponded with his legal representatives, including his relation to these proceedings, through the [RS Group] email address”. That submission is supported only by a reference to two pages of an affidavit sworn by the appellant on 10 June 2021 in the Bromwich J proceeding which was annexed to Ms Allen’s affidavit. In that affidavit, the appellant deposed that he used the RS Group email account for correspondence with his legal advisers concerning the defamation proceedings and an inquiry into rumours of serious misconduct, including potential war crimes, by Australia’s Special Forces in Afghanistan (commonly referred to as the IGADF Inquiry). The relevant paragraphs of that affidavit were admitted into evidence only for a non-hearsay purpose. The appellant was not cross-examined on that affidavit in the Bromwich J proceeding, which his Honour described at [16] as “untested”. Notably the respondents were not parties to that proceeding. Given the limited basis upon which the 10 June 2021 affidavit was admitted on the interlocutory application, and the absence of any other evidence from the appellant on this topic, there is no proper basis for us to find that his RS Group email address was used extensively (or indeed at all) for confidential communications with his lawyers.

82    In order to satisfy the Court that Mr McKenzie in fact had access to confidential documents the subject of legal professional privilege which could only have been obtained by improper access to the appellant’s RS Group email account, the appellant relied (apart from the recording) on six matters contained in particular documents that were tendered in evidence. In closing submissions, Mr Sheahan KC for the respondents said that the appellant’s case was not, and could not be, that Mr McKenzie had access to any other legally privileged documents improperly obtained from the appellant’s email accounts. Mr Moses SC, for the appellant, did not cavil with that proposition. It must, with respect, be correct, because “serious misconduct” resulting in a miscarriage of justice would not be established by proving a handful of examples and inferring misconduct of broader but unknown scope.

83    First, an exchange of text messages between Ms Roberts and Ms Scott, which formed part of what Mr McKenzie obtained in March 2021, discussed the receipt of an email by the appellant from “MOB” (evidently Mark O’Brien Legal, the appellant’s then-lawyers). The exchange appears to have occurred around the end of July 2019. The exchange begins “Geezuz … MOB just sent brs an email saying apf [corrected to “afp”] want to speak with him” and then “He thinks it’s got to do with coffee date”.

84    While this exchange obviously refers to an email to the appellant from his lawyer, it is far from obvious that this was a privileged communication. The actual email is not in evidence, but the substance of it as described is that the Australian Federal Police (AFP) had approached the appellant, through his lawyer, seeking a discussion with him. Ms Roberts says later in the exchange “It says ‘allegations of misconduct of a senior AFP officer’” (corrected in the next message to “AFP appointee”), indicating that the appellant’s assistance was being sought in an investigation of misconduct by an AFP officer. This is not suggestive of the seeking or provision of legal advice or preparation for litigation on the part of the appellant. (The “coffee date” is apparently a reference to discussions that occurred between the appellant and Mr Mick Keelty, a former Commissioner of the AFP, who was found by the primary judge to have told the appellant that there were AFP referrals concerning him: J[2437].)

85    In any event, the exchange is not supportive of a theory that Ms Roberts and Ms Scott were gaining unauthorised access to the appellant’s emails and supplying their contents to Mr McKenzie, for at least two reasons. One reason is that the exchange evidently occurred in 2019, before the appellant and Ms Roberts separated. The other is that it is fairly clear that Ms Roberts was describing the appellant’s reaction to the arrival of the email rather than surreptitiously logging on to his account. In the passage quoted above she clearly refers to what the appellant has indicated that the AFP’s request is about (“He thinks …”). After Ms Scott responds “Well there’s the drama he needs”, Ms Roberts observes “Yep straight to the toilet to ”. This is not a description of a privileged communication obtained by secretly logging on to an email account.

86    Secondly, in the email to his solicitors on 22 March 2021, Mr McKenzie records:

- D is adamant (150 % sure) that RS sought USBs from his SASR mates prior to his first visit to IGADF in around Early Dec 2018. D says that RS was sweating on the arrival of these USBs. Once he got them, he selected certain images to pass to the IGADF.

- RS provided only 17 images to IGADF. The IGADF process involves persons most likely stating on oath that the documents/images they have provided subject to order represents the total in their possession.

87    The appellant submits that he was represented by lawyers at the IGADF Inquiry and an inference can be drawn that the reference to him providing 17 images to the IGADF was drawn from a communication between him and his lawyers (or between the lawyers and the IGADF).

88    It is not clear whether the first point in the extract above is said to record a privileged communication. It appears to us to summarise communications between the appellant and his “SASR mates” (we understand SASR is the acronym for the Special Air Service Regiment). The appellant gave an account of obtaining these USBs in his evidence in chief in the trial.

89    As to the second point, the statement that the appellant provided 17 images to the IGADF is not attributed to Ms Scott. Mr McKenzie can be taken to have accumulated a large body of knowledge by this time concerning the events that were the subject of the various defamatory imputations and the appellant’s disclosures and non-disclosures about them. His cross-examination before us elicited evidence that he had ways of obtaining information about evidence provided to the IGADF Inquiry, which at one stage he was explaining to Ms Scott, together with an express denial that this particular piece of information came from her. We do not doubt the credibility or reliability of that evidence.

90    Thirdly, the same email includes:

- D believes that RS buried the USBs in mid 2019 fearing they would be discovered if the AFP raided his house. (It was around the 27th of July when he copied the financial files onto the USB, on 31 July MOB sent RS an email about the Mick Keelty issue and that authorities wish to speak to him about misconduct involving a senior AFP officer).

91    This is evidently a further reference to the email from Mark O’Brien Legal discussed above at [83]-[85], preceded by what is obviously a theory that had been advanced to Mr McKenzie by Ms Scott. For the reasons outlined above, we do not accept that that email was privileged or that a copy of it had been obtained by Ms Scott from the appellant’s email account.

92    Fourthly, later in the email of 22 March 2021, Mr McKenzie says:

- Monica writes to ERS seeking proof of the separation. “i don't know what they will subpoena from you, but if I was them, I would ask you for all documents evidencing or referring to: the separation- when it started and when it ended; - living arrangements during the separation; who you told you were separated; your knowledge of person 17 and when you found out about her. If or when you get subpoenaed, we will have an ‘independent barrister’ act on your behalf in relation to the subpoena to make any objections you may have the right to make as a subpoenaed party and we will represent Ben re any objections he may to wish to make as a party to the proceedings. Anyway, don't worry about that for now. Counsel would just like to see a couple of examples. unflattering is fine. It lends weight to the fact you guys were estranged.”

- Monica writes to ERS: "Hi Em, we met with Matthew Richardson this morning about the various categories for discovery and interrogatories to be answered by Ben. I mentioned that while Ben deletes everything, I understand that you had a couple of messages that evidence that:

- you were separated; and - that at some point you became aware of (picture of bunny, ie bunny boiler), so while we don't have evidence to produce from Ben, we will have when they issue a subpoena to you. Matthew said he would like an example of what you have- just so we know what we have to use in the future. So just a couple of examples of any messages would be great. It is not urgent."

93    This is evidently the text of one or more emails sent to Ms Roberts by Ms Allen. The appellant submits that these were confidential communications made for the dominant purpose of Ms Allen’s client (ie, the appellant) obtaining evidence for use in litigation, arising from counsel’s advice. It is said to be subject to litigation privilege on this basis, referring to Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 at [45] (Wigney J).

94    The first point to be made about this is that it is not, at least on its face, an example of privileged communications being obtained by access to the appellant’s email account. We were not taken to any evidence as to how the text of Ms Allen’s emails came into Mr McKenzie’s possession, and the obvious inference is that the source was the person to whom they were sent (Ms Roberts).

95    The second point to be made is that Ms Allen’s emails were clearly an attempt to obtain support for a contention that, as the primary judge found (J[2588]-[2597]), was false to the knowledge of the appellant (although, it would seem, not to Ms Allen’s knowledge). The emails were “part of the process or scheme” of advancing a fraud or crime, and is thus not the subject of legal professional privilege even if it otherwise would be: Kaye v Woods (No 2) [2016] ACTSC 87; 309 FLR 200 at [38] (Mossop AsJ) (as to the fraud/crime exception more generally see Commissioner of the Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 514 (Brennan CJ), 521-522 (Dawson J), 534 (Toohey J), 547 (Gaudron J), 556 (McHugh J), 575 (Gummow J)).

96    The third point to be made is that Mr McKenzie gave evidence in cross-examination (which we accept) that when he received the text of these emails (through Ms Scott) he thought it was “a witness being asked to come up with evidence of a lie, and then her telling her mate that”. His understanding (albeit expressed as at the present day) was:

The reason I don’t think it’s privileged is because it was Emma telling her mate Dan to go and find evidence to substantiate or corroborate a lie – a falsehood – being the separation lie.

97    This is at least broadly correct as a legal proposition and we are satisfied that it is consistent with Mr McKenzie’s understanding at the time he received the information. It stands squarely in the way of any finding, in this instance at least, of “wilful misconduct”.

98    Fifthly, Mr McKenzie recorded two of his early conversations with Ms Scott in August 2020. A transcript of one of those recordings includes the following exchange.

DS:     Ok. But, I said I don't I don't understand the thinking behind it. You know like I don't understand why they haven't… yeah I don't understand that. The only thing I can put it down to is that they think that Fairfax isn't gonna pursue that line.

NM:     Oh we absolutely intend to pursue it yeah.

DS:     They- for some reason they thought that the DV thing wasn't important. There was some tactic that either Bruce McWilliam or Arthur Moses, one of them came up with that nuh, it's really not important here.

NM:     Because the main- because the main game is war crimes or?

DS:     I don't know I don't think so. I think that they could- I think that the the thinking behind it was that if the IGADF didn't come back…ah, well my understanding is it can't come back um all it can do is make recommendations right and therefore you know pass things onto the AFP and so forth. So their thinking was well unless you actually get charged by the AFP the case is nothing. That's that was their thinking.

(Emphasis added.)

99    The entries in bold text are relied on by the appellant as evidence that Ms Scott disclosed to Mr McKenzie the views of the appellant’s legal team about the forensic significance of the “DV issue” and their tactics in relation to the IGADF Inquiry, and any communication of those matters was privileged.

100    We have quoted what was said immediately before the bold text in order to illustrate the difficulty of identifying exactly what was being referred to. The conversation was fairly long and unstructured. It is apparent from what precedes the part we have quoted that Ms Scott was discussing the position of Ms Roberts in the aftermath of her separation from the appellant and recounting one or more conversations she had had with Ms Roberts. Ms Scott, on our reading, does not suggest that she was a party to any discussions with the appellant’s legal team about their understanding of the case.

101    The appropriate inference is that Ms Scott was summarising either something Ms Roberts had said to her or an understanding that she had developed after talking to Ms Roberts. There is no evidence that the encapsulation of a “theory” about the “DV thing” or “thinking” in relation to the IGADF came directly to Ms Roberts or Ms Scott from a member of the appellant’s legal team. The passages are expressed in the past tense; they may therefore be referring to things that were conveyed to Ms Roberts months earlier (before her separation from the appellant), and very likely by the appellant himself. That raises a substantial question as to waiver, if the communication was otherwise privileged. In addition, the statement as to a “theory” is unspecific as to whether the “theory” came from Mr Moses (in which case it would likely be privileged) or from Mr McWilliam (who, while legally qualified, was connected with the case only as a senior executive of the entity that was funding the appellant).

102    This was one of several aspects of the application in respect of which the appellant invoked the principle in Blatch v Archer. It was submitted that, in the absence of evidence from Ms Scott or Ms Roberts, an inference would be drawn that this (apparent) disclosure of the appellant’s trial strategy came from an email communication to which they had access.

103    However, there are several matters as to which it was clearly within the power of the appellant to lead evidence. One is whether the “theory” in question was ever articulated within the appellant’s team (if there was no such “theory”, it would follow that Ms Scott was simply reporting speculation). A second is who articulated it, to whom and in what circumstances (matters which are essential if it is to be accepted that the communication was privileged). A third is whether it was conveyed by or referred to in any message in the appellant’s RS Group email account (absent this evidence, any suggestion that it was obtained by improperly accessing that account is pure speculation). None of this evidence is before the Court.

104    Sixthly, Ms Scott sent Mr McKenzie a series of text messages in rapid succession on 2 November 2020 which said:

Heads up … MA is going to write to the CDPP and notify them that your tweet is a breach of the Family Law Act s121. They are also going to apply to the court for a restraint preventing any further publications of that nature being made. They are also going to make a second further application not to disclose any further material to the “respondents” (ffx) from the family court

Always better to be on the front foot I say and know what they are planning ;-)

I think you owe me 2 x beers now

105    Earlier that day, Mr McKenzie had tweeted the following.

Big twist today in defo case brought by alleged war criminal Ben Roberts-Smith VC. RS’s own key witness has alleged in sworn affidavit that RS told the witness to lie. Key details suppressed but alleged lie reported unwittingly pg1 of The Australian in RS public relations ploy.

106    The reference in this tweet to a “sworn affidavit” by a “key witness” is apparently to an affidavit sworn by Ms Roberts in her Family Court proceedings against the appellant. Section 121(1)(b) of the Family Law Act, which has since been repealed, prohibited the publication of any account of evidence in proceedings instituted in the Family Court.

107    “MA” in Ms Scott’s first message was apparently a reference to the appellant’s solicitor, Ms Allen. What emerges is that Ms Scott had received information about something the appellant’s solicitors were intending to do in relation to Mr McKenzie’s tweet (refer it to the Commonwealth Director of Public Prosecutions (CDPP)) and the Family Court proceedings (apply to that Court for an order restricting access to documents) and she was passing this on to Mr McKenzie.

108    The appellant submits that it should be inferred that Ms Scott gleaned this information from a confidential communication between the appellant and his solicitors. However, evidence tendered on the interlocutory application demonstrates that on 2 November 2020 Ms Allen sent several emails concerning the tweet to the solicitors acting for the appellant in the Family Court proceeding, including one confirming an intention to write to the CDPP. In an email in the same chain, sent less than half an hour earlier, Ms Allen wrote to the solicitors in the Family Court proceedings: “A matter for you, but it may be worth drawing to Emma’s lawyers attention the damage she is doing to Ben’s defamation proceedings …”. This makes it much more likely that the relevant chain of communication went through the solicitors in the Family Court proceedings to Ms Roberts and from her to Ms Scott. Further, Ms Allen’s emails were copied to the appellant at an email address that was not his RS Group address, which makes it extremely unlikely that Ms Scott would have found out about that communication from the RS Group hosting account on the same day. In any event, the evidence of access to that account did not suggest that anybody had logged into that account on or about 2 November 2020. That this should be put forward by the appellant as an example of the improper receipt of privileged information is therefore rather surprising. It should also be noted that Ms Allen informed the solicitors in the Family Court proceedings that she was going to write to MinterEllison. Indeed, on 2 November 2020, Mr Svilans wrote to the respondents’ lawyers informing them of the firm’s intention to notify the CDPP of Mr McKenzie’s tweet. The appellant’s senior counsel tendered that letter at the hearing of the interlocutory application. It indicates that Mr McKenzie’s solicitors probably knew of the action Ms Allen was intending to take before the messages from Ms Scott arrived. One can therefore be confident that, even if some misconduct attended the messages received from Ms Scott, it had no capacity whatsoever to affect the outcome of the proceedings.

109    It was only in relation to the first of the points discussed above (the email from Mark O’Brien Legal) that the appellant’s submissions made any attempt to demonstrate a real possibility that the result of the trial was affected. This does not strictly need to be dealt with, because we have rejected the contention that Mr McKenzie coming into possession of the exchange of messages about the email was an example of misconduct on his part (see [83]-[85] above). The submission was that the information concerning the email was used by Mr McKenzie to develop a theory that he had buried USBs containing important information because he had been told that the AFP wished to speak to him and he feared that his house would be raided. There may be some substance to this; however, the email in which Mr McKenzie suggested this was sent on 22 March 2021, roughly a year after Ms Roberts and Ms Scott had discovered the buried USBs and a little over two weeks after Mr McKenzie had been shown their contents by Ms Scott. The cat was very much out of the bag by this time: the respondents were aware of the contents of the USBs and of the fact that the appellant, rather than discovering them as he was required to do, went to some trouble to conceal them. The ultimate finding of the primary judge (at J[2541]) was that the appellant “lied about not burying the USBs in the backyard of the matrimonial home” and “decided not to discover them”. Identifying the particular event or events that had led to the appellant deciding to bury the USBs was at best peripheral to the forensic dispute concerning their non-discovery (which, of course, was one of many findings that damaged the appellant’s credit and had no connection, other than by way of credit, with the findings on the respondents’ truth defences). The appellant’s contact with Mr Keelty and his consequent knowledge of AFP referrals concerning him was also the subject of findings at J[2437] and [2494]; however, the fact of that contact was raised by the appellant himself in his evidence in chief, and the revelation through Mr O’Brien’s email of an investigation into Mr Keelty does not appear to have any bearing on those findings. We do not accept that there is any real possibility that the disclosure to Mr McKenzie of messages describing the arrival of an email alerting the appellant to an investigation into Mr Keelty’s conduct had an effect on the outcome of the proceedings.

Conclusion

110    For these reasons, even if proposed ground 17 articulates a case that is capable of causing the judgment below to be set aside, it fails at an evidentiary level.

Other issues relevant to the interests of justice

111    An assessment of where the interests of justice lie must also take account of what the Court in Quade referred to (in the quotation at [41] above) as any “lack of diligence on the part of the unsuccessful party”. This echoed the language of Menzies J in McDonald (quoted at [43] above). The consideration that underlies these formulations is whether a matter sought to be raised as a reason for setting aside the judgment could have been agitated during the trial. The public interest in the finality of litigation entails that it is not normally in the interests of justice for a judgment to be set aside and a new trial ordered, on the ground of misconduct by the successful party, if that conduct could have been identified and made the subject of appropriate orders in the trial. That point is now reinforced by the “overarching purpose” set out in s 37M(1) of the FCA Act, which this Court is required to promote in its administration of the “civil practice and procedure provisions”.

112    The commencement and energetic pursuit of the Bromwich J proceeding shows that, by 1 June 2021, the appellant was persuaded of a likelihood that his confidential communications were being accessed by persons antipathetic to his interests. He was sufficiently strongly persuaded to commence proceedings in this Court, to secure orders for production against Ms Roberts, to attempt to examine her on her response to those orders and to apply to join Ms Scott and her husband. The present respondents were not parties to that proceeding and it is not suggested that it could have given rise to any issue estoppel in their favour. The making of the application to examine Ms Roberts (which was unsuccessful) indicates that the appellant was not convinced that he was wrong. The issue of access by Ms Roberts and Ms Scott to the appellant’s emails was also pursued in some detail in the cross-examination of Ms Roberts in the trial. The appellant also issued a subpoena to Ms Scott in May 2021, seeking among other things her communications with Ms Roberts.

113    Two points follow from this. First, to the extent that it is contended that the appellant would have taken some step in the trial or made different forensic decisions if he had known of Mr McKenzie’s misconduct (cf proposed particular 37(a) and (c)), the contention does not pose a genuine counterfactual. The appellant must be taken to have believed at least until June 2022 (when final orders were made in the Bromwich J proceeding) in a real likelihood that his confidential communications were being made available to the respondents, and no event after that time has been suggested as dispelling that suspicion. What he would have done, had he been aware of the alleged misconduct by Mr McKenzie, is probably no different from what he actually did. We doubt, in any event, whether this is a significant point. The issue is whether there is a possibility that the misconduct affected the outcome. The central question must therefore be what effect the misconduct had on the conduct of the proceeding and the judgment; not what the opposing party would have done if made aware of the misconduct.

114    Secondly, the allegation now sought to be pursued against Mr McKenzie (and collaterally against Ms Scott and Ms Roberts) overlaps very substantially with one pursued in proceedings against Ms Roberts that commenced nearly four years ago and in cross-examination in the trial. Having become concerned about the issue, it was obviously open to the appellant to take further steps in the proceedings below, such as seeking leave to issue further subpoenas to Ms Scott or issuing a focused notice to produce to the respondents. To set the entire trial at nought on a ground so closely related to issues that have already been raised, investigated and debated, and which could have been further pursued during the trial, cannot in our view be in the interests of justice unless the evidentiary landscape has changed very significantly. An example of such a circumstance might be the disclosure of cogent evidence, relevant to the issue, that was previously concealed by the defaulting party. That is not the case here. While we are prepared to assume that the recording was not capable of being obtained by the appellant until it was sent anonymously to Mr Svilans (the respondents not having taken any point about this), there is no evidence that its concealment was brought about by the respondents. Nor, for reasons outlined above, does the recording substantially strengthen the claim that Mr McKenzie engaged in the misconduct alleged. To the extent that there is a proper evidentiary basis for the allegation in proposed ground 17, it was available during the trial.

Conclusion as to prospects of success

115    Had we been persuaded that the allegation in proposed ground 17 had significant merit, it would be necessary to consider the factor discussed above in conjunction with a conclusion about the degree of culpability of Mr McKenzie in order to come to a view about what the interests of justice required. As things stand, that exercise does not need to be undertaken. Our conclusions as to the scope of what is alleged in proposed ground 17 and the evidence presented in support of it dictate the conclusion that, if allowed to be added to the grounds of appeal, it would fail. If further support for that conclusion were needed, it would be found in the fact that the appellant was aware of the access to his email account during the trial and had opportunities to pursue the issue then.

Exercise of the discretion to grant leave to amend and to adduce further evidence

116    The conclusion in the previous paragraph also points the way to the correct disposition of the interlocutory application. Having heard full argument on the proposed new ground, we would reject it. A grant of leave to amend, and to adduce the evidence, would therefore be futile.

117    It follows that the interlocutory application will be dismissed with costs.

Associate:

Dated:    16 May 2025

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