Ben Roberts-Smith’s lawyer has said a judge was “dead wrong” to refuse a bid to have xjmtzywthe veteran’s ex-wife cross-examined over access to his emails.
The highly decorated former SAS soldier is suing his ex-wife, claiming she had access to an email account connected with his public speaking company, RS Group, and suspected either she or her best friend had leaked its contents.
Mr Roberts-Smith wanted his lawyers to question his former wife, in a courtroom, about her access to the account and whether she had leaked the emails.
He also wanted his ex-wife’s best friend and the friend’s husband to be questioned over the emails after their IP address was allegedly recorded accessing the account.
But Justice Robert Bromwich, on January 21, ruled against Mr Roberts-Smith and accepted Ms Roberts’ explanations that the emails were only accessed for legitimate purposes.
“(The case) 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.
Mr Roberts-Smith’s barrister Arthur Moses SC laid out a series of arguments to a different Federal Court judge on Wednesday, explaining why he thinks the January decision was wrong.
Seeking leave to appeal, Mr Moses’ arguments included claims Ms Roberts used a common password to access the veteran’s email inbox, that she deleted certain messages, flagged others and possibly shared information with other people.
Mr Moses said Justice Bromwich had “erroneously given Ms Roberts the benefit of doubt in all matters” and created a grave injustice for Mr Roberts-Smith.
“The flagging of emails in the account, including a legally privileged email, indicated that the account had been accessed by a third party,” Mr Moses said.
“That was a matter addressed not at all by Justice Bromwich … that was simply dead wrong.”
Justice Michael Wigney pointed out that Ms Roberts had already indicated she would not be opposed to an injunction preventing her from using any information she would have derived from the email account.
“What is the substantial injustice that would result if leave for appeal was refused … you've effectively obtained the relief you seek?” he asked.
He also pointed out Ms Roberts had been cross-examined as part of the parallel lawsuit Mr Roberts-Smith is waging against Nine newspapers over a series of articles he says falsely portrayed him as a war criminal.
“That cross-examination touched on Ms Roberts’ access to the email account and what she’d done with the information,” he said.
He also said Justice Bromwich could revisit his decision if anything came to light in the other proceedings that would change the situation.
Ms Roberts’ barrister Patrick McCafferty echoed those concerns and opposed the application.
Justice Wigney said he would reserve his judgment.
