The judge presiding over an urgent Federal Court case brought by former special forces soldier Ben Roberts-Smith against his ex wife has raised concerns that he was not told that a crucial affidavit filed in the proceedings was sworn by a lawyer with whom Mr Roberts-Smith was reportedly in a relationship.
Mr Roberts-Smith launched urgent Federal Court proceedings last week against his former wife, Emma Roberts, who is expected to give evidence for The Age and The Sydney Morning Herald in her ex-husband’s high-stakes defamation case against the mastheads.
One of Roberts-Smith’s lawyers, Monica Allen, arrives at court on Tuesday. Credit:Dylan Coker
The defamation trial started on Monday and is estimated to run for up to ten weeks.
Mr Roberts-Smith’s barrister, Arthur Moses, SC, told the Federal Court last Friday that the proceedings against Ms Roberts related to an allegation she had access to an email account her former husband used to correspond with his lawyers about the defamation case and a separate inquiry into the conduct of Australian soldiers in Afghanistan.
Mr Moses said that if material had been communicated to the media outlets for the defamation case, “either verbally or otherwise, it raises all sorts of problems in terms of illegality of material in their possession and potential unlawful conduct”.
On June 1, Justice Robert Bromwich had ordered Ms Roberts to hand over any documents to the court’s Brisbane registry, and was given until this Friday to file an affidavit setting out when and how any such information was obtained by her, and to whom it had been given.
Ben Roberts-Smith arriving at the Federal Court in Sydney on Wednesday for a defamation trial.Credit:Dylan Coker
But on Wednesday, Justice Bromwich said a crucial affidavit filed by Mr Roberts-Smith’s team in the second case, which was heard in Ms Roberts’ absence on June 1, had been sworn by a solicitor with whom Mr Roberts-Smith was reportedly in a relationship at one stage.
“Media reporting since then has indicated that the deponent of affidavit was in personal relationship with the applicant,” Justice Bromwich said. “I wasn’t aware of any of this...I’m uncomfortable with the situation.”
While he did not name the woman, media reports have previously linked Mr Roberts-Smith to his solicitor, Monica Allen, who is part of the team of lawyers acting for him in the defamation proceedings.
Justice Bromwich said that if a “material disclosure” had not been made it “has the potential to unravel the entirety of the orders I made on 1 June”.
He said he was “not taking those media reports as being accurate or inaccurate” and “it may all be false” but “I thought I had to raise it”.
“I’m trying not to put the deponent of the affidavit in an awkward position. It’s an embarrassing situation; it may be false. I have to deal with the reality that I have become aware of information that may or may not be correct,” he said.
The orders against Mr Roberts-Smith’s former wife were made on the basis of the affidavit, in which the solicitor made certain statements based on their information and belief.
But Justice Bromwich said there was a “world of difference” between a solicitor at arm’s length deposing to certain matters and a solicitor in a relationship with Mr Roberts-Smith doing so.
Mr Moses said Mr Roberts-Smith’s team would provide “other affidavit material”, expected to be an affidavit from Mr Roberts-Smith himself, to provide a basis for the orders.
He submitted the orders should not be discharged. He took aim at “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.
Separately, Justice Bromwich advised the parties on Wednesday that he knew former judge Len Roberts-Smith, QC, who was head of the Defence Abuse Response Taskforce and is Mr Roberts-Smith’s father.
But he said “I see no reason why I should disqualify myself from this proceeding”.
Mr Moses indicated that he would seek instructions about whether Mr Roberts-Smith’s legal team would make an application for Justice Bromwich to recuse himself from the proceedings on this basis.
Mr Roberts-Smith launched the defamation lawsuit in 2018 over reports in The Age, the Herald and The Canberra Times that he says accused him of murder during his 2009 to 2012 tour of Afghanistan and committing an act of domestic violence against a woman with whom he was having an extramarital affair. Along with the two media outlets now owned by Nine, he is suing three journalists and The Canberra Times, which is now under separate ownership.
He denies all wrongdoing. The media outlets are seeking to rely chiefly on a defence of truth.
Mr Roberts-Smith was expected to appear on the witness box on Wednesday in the defamation proceedings but the hearing was adjourned until Thursday to allow the parties to deal with preliminary issues.
Michaela Whitbourn is a legal affairs reporter at The Sydney Morning Herald.
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2021-06-09 00:49:36Z
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