Ben Roberts-Smith’s attempt to sue his ex-wife over what he alleges is illegitimate access to his emails has hit a judicial hurdle, with a judge saying he is concerned about media reports that the former soldier might be in a relationship with the lawyer who swore a crucial affidavit in the proceeding.
The legal action is running in parallel to the Victoria Cross recipient’s defamation action against three newspapers, which he says accused him of war crimes. Roberts-Smith’s legal team has argued that illegitimate access to legally privileged, or national security-sensitive information, could have “contaminated” the defamation proceedings.
An information and belief affidavit was filed on behalf of Roberts-Smith by one of his solicitors. But in a dramatic development Wednesday, Justice Robert Bromwich told the federal court he had read media reports that indicated Roberts-Smith might be in a relationship with the lawyer.
“Media reporting since then has indicated that the deponent of the affidavit was in a personal relationship with the applicant,” Bromwich told the court. “I wasn’t aware of any of this … I’m uncomfortable with the situation.
“It’s a potentially delicate thing, but if the relationship is anything other than a purely professional relationship, I want to know why that wasn’t disclosed.”
The lawyer’s name was not mentioned in court, but Roberts-Smith has previously been linked to media lawyer Monica Allen. He has been photographed holding hands with Allen, and the Australian Financial Review reported two days ago that he was seen returning to her apartment in running gear.
The judge said if the deponent of the affidavit was in a personal relationship with Roberts-Smith, “I consider that should have been disclosed”.
Arthur Moses, SC, acting for Roberts-Smith, said an alternative affidavit would be provided to the court. He said he was concerned by “rumour and innuendo” and said it was unusual for a judge to take media reporting into account.
“Female lawyers have enough to deal with in this profession without these aspersions being put against them,” he said.
Roberts-Smith’s defamation hearing has been adjourned for the day on Wednesday and will resume – with evidence from the former soldier – on Thursday.
The adjournment is because of the release of new department of defence documents to both the newspapers’ and Roberts-Smith’s legal teams.
Roberts-Smith’s legal team has argued before court his high-profile defamation trial may be “contaminated,” because they believe his ex-wife, Emma Roberts, had access to the former soldier’s emails and may have shared legally privileged, or national security, information.
It has been argued Roberts had access to Roberts-Smith’s emails, including correspondence with his lawyers concerning the defamation proceedings, and the Afghanistan inquiry conducted by the inspector general of the ADF.
Roberts-Smith has launched the legal action against his estranged former wife, seeking all the information she holds from his email account, as well as a declaration of with whom that information has been shared.
Roberts has produced documents to the federal court’s Brisbane registry. It is being “safe-handed” to Sydney.
Bromwich said the court needed to hear from Roberts on her access to the information.
“She might say she had a right of access, there was no breach of confidence,” Bromwich. “I don’t know.”
The judge also disclosed to the court he had formerly met Ben Roberts-Smith’s father, Len, in his capacity as the commonwealth director of public prosecutions, regarding a defence response to abuse taskforce, which Len Roberts-Smith, a judge and military officer, chaired. But he said: “I see no reason why I should disqualify myself from this proceeding.”
Roberts-Smith, 42, is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of reports published in 2018 which he alleges are defamatory because they portrayed him as someone who “broke the moral and legal rules of military engagement” and committed war crimes, including murder. In their defence, the newspapers have alleged he committed six murders at five separate locations, as well as bullying other soldiers and committing an act of domestic violence in Australia.
Roberts-Smith, a decorated former corporal in the SAS, has consistently denied the allegations as “baseless”, saying they were “completely without any foundation in truth”.