Disgraced soldier Ben Roberts-Smith has suffered a blow to his plans to appeal against a defamation judgment which found he committed war crimes while on duty in Afghanistan.

The former Special Air Service corporal sued the publisher of this newspaper, then known as Fairfax Media, and The Age and The Sydney Morning Herald investigative journalist Nick McKenzie, after a series of articles alleged Roberts-Smith carried out war crime murders while deployed with the SAS.

The Federal Court dismissed the case in June 2023 when a judge found, to the civil standard of the balance of probabilities, that Roberts-Smith had committed multiple war crime murders, assaulted Afghans and engaged in a campaign of bullying against Australian troops a decade earlier.

The Victoria Cross recipient appealed against the judgment and has been waiting for a decision for more than a year.

Last month, he filed an application to reopen his appeal to introduce as evidence a recording of McKenzie speaking to a woman the famed soldier had an affair with, known in the trial as Person 17.

Loading

In the call, McKenzie allegedly says Roberts-Smith’s ex-wife, Emma Roberts, and her close friend, Danielle Scott, were “actively briefing us on his legal strategy in respect of you”.

Roberts-Smith’s legal team on Wednesday defended wide-ranging subpoenas they had issued to McKenzie, the journalist’s lawyers, Person 17, Roberts, Scott, and the ABC.

“To say that (the recording) contents are shocking is an understatement,” Roberts-Smith’s lawyer Arthur Moses, SC, told the court.