Legal action launched by Ben Roberts-Smith against his ex-wife has been complicated after a judge raised the potentially “embarrassing” situation of media reports that he spent time socially with a lawyer.
Mr Roberts-Smith took Emma Roberts to court last week, on the eve of his high-stakes defamation trial against Nine Entertainment Co, over allegations she was accessing an email account he used for confidential legal correspondence.
Mr Roberts-Smith is suing The Sydney Morning Herald, The Age and The Canberra Times in a separate case over allegations of war crimes, bullying and domestic violence.
The veteran’s legal team told the court it had questioned whether Ms Roberts passed the information, which is alleged to have included privileged material about the defamation case and the Afghanistan inquiry, on to other parties including Nine Entertainment Co.
But during a hearing in the Federal Court this morning, Justice Robert Bromwich raised a media report about Mr Roberts-Smith’s connection to solicitor Monica Allen, who has been working on the defamation case.
Last August, News Corp published photographs of Mr Roberts-Smith riding scooters and holding hands with Ms Allen in Brisbane.
Ms Allen was the deponent of an affidavit filed in the case against Emma Roberts.
“I’m trying not to put the deponent of the affidavit in an awkward position,” Justice Bromwich said.
“It’s an embarrassing potential situation, it may be false. I have to deal with the reality that I have become aware of info that may or may not be correct.”
The judge requested Mr Roberts-Smith’s barrister, Arthur Moses SC, seek instructions about any “purported or alleged” relationship.
“It’s potentially a personally delicate thing, but if the relationship between the deponent of the affidavit and the applicant is anything other than a purely professional relationship, I want to know what that wasn’t disclosed,” he said.
The judge said he was “surprised” it was left to him to raise the matter.
Mr Moses said he was conscious not to turn the separate case into “a satellite hearing to distract from the substantive [defamation] hearing”.
“Female lawyers have enough to deal with in this profession without having those kinds of aspersions being put against them,” he said.
Justice Bromwich said he raised the matter “with some anxiety”.
“It’s not something I find appealing at all, but I have to deal with the cards that are served on me.”
Justice Bromwich said the problem was he had exercised power and made orders last week based on “an affidavit where there is at least a basis for a concern there has not been compliance with the duty of utmost good faith and disclosure”.
Mr Moses agreed to provide further material to back up the orders.
Justice Bromwich also raised a separate matter regarding Mr Roberts-Smith’s father, former judge Len Roberts-Smith QC, saying he had recognised him from an ABC News report on Monday night.
The judge said seven or eight years ago, he met Len Roberts-Smith as the head of the Defence Abuse Response Taskforce, and while a meeting between the pair was sought it never eventuated.
Justice Bromwich said he saw no reason to justify recusing himself from the proceedings, but Mr Moses told him he will seek instruction on the matter.
The case returns to court next Tuesday.
The defamation trial has been adjourned until Thursday morning.