Ben Roberts-Smith’s legal team has said he is not in a relationship with one of his lawyers after a judge raised concerns in court over media reports he was.
The former soldier’s attempt to sue his ex-wife over what he alleges is illegitimate access to his emails hit a judicial delay on Wednesday, when a judge said he was “uncomfortable” about media reports the former soldier might be in a relationship with a lawyer who swore a crucial affidavit in the proceeding.
The legal action is running in parallel to the Victoria Cross recipient’s substantive 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 morning, 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.
In August last year, when an alleged relationship was first reported, Allen’s boss Mark O’Brien said he had spoken with her about the matter.
“She and I agree that it was unwise to spend some time socially with him.”
In a hastily-convened hearing Wednesday afternoon, Arthur Moses SC, acting for Roberts-Smith, said “the applicant (Ben Roberts-Smith) and the deponent (Allen) are not in a relationship. Full stop”.
Moses said media reportage about their speculated relationship – in particular by media organisations involved in the substantive defamation case – “may … have the tendency of seeking to intimidate or threaten those lawyers. That may itself constitute a contempt of court.”
Roberts-Smith himself will provide an affidavit to the court by 4pm Thursday “dealing with the issues regarding Ms Roberts”, the court heard.
Roberts-Smith’s substantive defamation hearing was adjourned on Wednesday after the release of new department of defence documents to both the newspapers’ and Roberts-Smith’s legal teams. That substantive matter will resume – with evidence from the decorated former SAS corporal – on Thursday.
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-Smith’s lawyers say they were alerted to Roberts’ potential access when the newspapers’ lawyers sent “targeted notices to produce that asked for material that could only have come from emails, that is, his emails”.
Roberts produced documents to the federal court’s Brisbane registry which were “safe-handed” to Sydney and will be first handed to the federal government’s lawyers, out of concern they may include national security-sensitive information.
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.”
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 has consistently denied the allegations as “baseless”, saying they were “completely without any foundation in truth”.
