Court rejects 50-year suppression order over Nine’s secret deal with Ben Roberts-Smith witness

A Federal Court judge refused a request by the Nine media group and one of its top journalists, Nick McKenzie, to lock up a secret deal with a key witness in the Ben Roberts-Smith defamation case for 50 years.

Justice Nye Perram said there was no point suppressing information in the agreement between Nine’s newspaper and a witness identified as Person 17 because the information had already been published on the internet.

After a six-month romantic relationship with Mr Roberts-Smith in 2017 and 2018, the woman passed on information to McKenzie about the former SAS soldier and holder of the Victoria Cross. She also testified against Mr Roberts-Smith in 2022 in the former soldier’s epic and unsuccessful defamation lawsuit against Nine, McKenzie and co-writer Chris Masters.

Last November Nine took the unusual step, for a media company, of asking the court to ban publication of the legal agreement it struck with her for five decades.

The request was opposed by West Australian Newspapers, publisher of The Nightly and The West, and News Corp Australia. The Nightly published information from the agreement, known as a deed of settlement, before a temporary suppression order came into effect.

“They remain available on the world wide web even now,” Justice Perram said. “The respondents [Nine and McKenzie] do not seek orders requiring these stories to be taken down and it is likely, given the profile of the case, that they have been viewed by a large number of persons.”

Ethical breach

Last year a recording emerged of McKenzie telling Person 17 that Nine had obtained access to confidential information about Mr Roberts-Smith’s legal strategy. “I shouldn’t tell you,” the journalist said. “I’ve just breached my f...ing ethics in doing that. Like this has put me in a s..t position now.”

McKenzie acknowledged in court the woman threatened to sue him and Nine newspapers. She asked for the suppression order to be changed to allow some information in her deal with Nine to become public.

Nine will now have to decide whether to ask the High Court whether to over-rule Justice Perram’s decision before the document becomes public on February 16.

A full bench of the Federal Court rejected Mr Roberts-Smith’s appeal in this defamation case over Nine’s allegations of war crimes, as did the High Court.

Mr Roberts-Smith’s lawyer couldn’t be reached for comment.