Ben Roberts-Smith loses ‘leaked email’ challenge against ex-wife

Ben Roberts-Smith has lost a significant court challenge after accusing his ex-wife of leaking emails to his critics in the media.

Ben Roberts-Smith has been denied an appeal that could have seen him grill his ex-wife about whether she leaked his private emails to his critics in the media.

Mr Roberts-Smith is suing Nine newspapers for a series of articles that accused him of war crimes, bullying and domestic violence.

The Victoria Cross recipient denies every allegation against him and has faced off against his accusers in court including SAS soldiers, his ex-wife Emma Roberts and his alleged former ‘mistress’ who is known as Person 17.

The soldier‘s lover had appeared on the doorstep of the family home, in April 2018, and thrown Ms Roberts’ life “into chaos”, she would tell the court in evidence.

Mr Roberts-Smith and Ms Roberts separated in 2020 as his legal action worked through the Federal Court.

He launched a second lawsuit in mid-2021, against his former wife, accusing her of accessing his private emails to Nine either personally or through her best friend.

Ms Roberts denied his claims.

A Federal Court judge, in January this year, accepted Ms Roberts‘ denials and ruled Mr Roberts-Smith’s lawyers could not cross-examine her in the stand.

Mr Roberts-Smith launched a second lawsuit against his former wife accusing her of leaking emails to Nine newspapers. Picture NCA Newswire/ Gaye Gerard

Mr Roberts-Smith applied for a chance to appeal but Justice Michael Wigney, on Monday, refused the soldier‘s bid.

“Mr Roberts- Smith’s real complaint appears to be that the primary judge did not weigh up the evidence in a way which favoured him,” Justice Wigney said in his judgment on Monday.

“The decision of the primary judge is not attended with sufficient doubt to warrant reconsideration by the Full Court.”

Justice Wigney also noted that Ms Roberts‘ evidence in the main trial, against Nine, touched on her access to the emails. If anything significant changed as a result of her evidence, the judge said, Mr Roberts-Smith could launch other legal appeals.

It means the original judge‘s decision will stand and Ms Roberts will not have to step into the witness box to answer questions about the emails.

Mr Roberts-Smith‘s lawyers, in the 2021 lawsuit, claimed Ms Roberts had access to an email connected with his public speaking company, RS Group, and suspected either she or her best friend Danielle Scott had leaked its contents.

Mr Roberts-Smith used the RS Group email to communicate confidential information to his lawyers about the defamation trial and his employer, Seven network.

A judge ruled Mr Roberts-Smith could not appeal a decision that prevented him from grilling his former wife, Emma Roberts (centre), about the emails. Picture: AAP

The former soldier also used the email to communicate with the Inspector General of the Australian Defence Force who is conducting an inquiry into war crime allegations in Afghanistan.

“I think Emma has been accessing my RS Group emails,” Mr Roberts-Smith allegedly told an associate, the court heard.

“Fairfax’s lawyers have details of my emails – how else could they know that stuff?”

Justice Robert Bromwich disagreed.

“(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,“ he said.