Former soldier Ben Roberts-Smith has lost a court bid to have his former wife questioned about allegations she accessed his private emails, with a judge ruling his case relied upon “possibilities and suspicions” that were in many cases “ill-founded”.
Roberts-Smith was ordered by the federal court justice Robert Bromwich to pay the costs of Emma Roberts, his former wife, in Friday’s judgment.
The former special forces soldier had been seeking to have Roberts cross-examined about whether she had accessed emails from a joint account the couple both had access to when they were married. The couple separated in January 2020.
Roberts-Smith argued confidential information of his had been obtained by Roberts from the email account and given to media organisations he is suing for defamation in separate court proceedings.
In those proceedings, he claims a series of reports published by the Age, the Sydney Morning Herald and the Canberra Times in 2018 are defamatory because they portray him as someone who “broke the moral and legal rules of military engagement” and committed war crimes including murder.
Roberts-Smith has consistently denied the allegations, saying they were “false”, “baseless” and “completely without any foundation in truth”. The newspapers are running a truth defence to their reporting.
Roberts-Smith had wanted Roberts to be cross-examined about the email address, but also to provide a new affidavit to the court about every person she had given access to the account, and every person to whom she had disclosed the contents of the account.
He had also applied to have Danielle Scott, a close friend of Roberts, and Scott’s husband added to the court proceedings. Roberts and Scott are both expected to be called as witnesses by the newspapers in the defamation case.
But on Friday, Bromwich ruled that Roberts-Smith had provided little evidence to justify his application.
“The material relied upon goes no further than bare possibilities and suspicions, with many such assertions in relation to Ms Roberts being shown to be ill-founded as against her, and equally ill-founded as against Ms Scott,” the judge said.
Roberts-Smith said in his affidavit that the email account that was the subject of the court case had been set up in December 2012 to handle paid public speaking engagements through a company known as RS Group. Roberts-Smith, his accountant and Roberts, as directors of RS Group, all had their own individual email accounts, but also had administrator access that allowed them to read all emails that came to RS Group accounts.
Roberts-Smith said in his affidavit that after the publication of the alleged defamatory articles, he no longer received requests for public speaking engagements but continued to use his personal RS Group email address from the end of 2018 until about 20 April 2021.
He said this included corresponding with his legal advisers in relation to the defamation proceedings and the Afghanistan inquiry being conducted by the inspector general of the Australian defence force, and corresponding with people from his employer, the Seven Network, “all of which was confidential and some of which included legal advice”.
But Bromwich said the media outlets in the defamation hearing had not included any material in their case that had come from Roberts, and that the examples Roberts-Smith had provided of correspondence between Roberts and Scott – which he argued indicated the emails had been accessed improperly – were not conclusive.
One such 2020 exchange, in which Scott tells Roberts she has found four chapters of a book Roberts-Smith wrote and a “graphic email” from his ghostwriter, referred not to Scott having access to the email account, Bromwich found, but to her finding copies of emails that Roberts had sent her months previously.
“The inference sought to be drawn that this statement was a reference to a privileged document was weak to non-existent, whereas the explanation that Ms Roberts gives is logical and coherent and supported by the terms of the email chains produced, which I am satisfied are authentic for the reasons already given,” Bromwich said.
“This conclusion also bolsters the reliability of Ms Roberts’ affidavit evidence and correspondingly detracts from the reliability of Mr Roberts-Smith’s affidavit evidence.”
Bromwich did find that Roberts had accessed the account on one occasion after they had separated that had not been disclosed in her original affidavit – when she had opened an email sent to Roberts-Smith regarding a purchase he had made with airline loyalty points.
Bromwich accepted that she had accessed the account and the email for legitimate reasons and had been “candid” in disclosing how this occurred and why she shared the contents of the email with Scott.
The case is listed to return to court again for a management hearing on 28 January, with the defamation trial, which has been delayed by the pandemic, expected to resume on 2 February.