Ben Roberts-Smith fears ex wife Emma gave Nine his emails to lawyers, investigators, court told

Ben Roberts-Smith’s lawyers have made an explosive claim in court about emails and the decorated soldier’s former wife.

Ben Roberts-Smith is urgently trying to find out if his ex wife took his confidential emails to lawyers and war crime investigators and leaked them to Nine newspapers on the eve of his defamation trial, a court has heard.

The decorated soldier’s lawyers now say his high-profile trial may be “contaminated”.

Mr Roberts-Smith launched a lawsuit against his former wife, Emma Roberts, on June 1 but it was not listed in the court files or announced publicly.

Ben Roberts-Smith’s lawyers say they fear his ex wife gave confidential emails about an Afghanistan inquiry to Nine newspapers. Picture: Department of Defence

His barrister, Arthur Moses SC, told the court on Friday Ms Roberts was ordered to reveal whether she had accessed her ex husband’s email account and what she had done with the information.

That happened after Nine newspapers, in the defamation trial, asked for emails and attachments from Mr Roberts-Smith’s email account.

The emails were not stored anywhere else and, when Mr Roberts-Smith began sorting the documents, he noticed some had been deleted without his consent.

“Ms Roberts, the evidence showed, had access to the applicant’s emails and that email account he used was used for corresponding with his lawyers concerning the defamation proceedings and the Afghanistan inquiry conducted by the Inspector-General of the Australian Defence Force,” Mr Moses said.

“And correspondence with persons associated with his employer.”

Mr Moses told the court legally privileged information belonging to Mr Roberts-Smith had been produced by his ex wife along with documents that would have been confidential under the IGADF inquiry.

“If it transpires she communicated material to anybody on (Nine’s) side... it raises all sorts of problems of illegality of material in their possession and potential unlawful conduct.”

Ben Roberts-Smith and former wife Emma Roberts are now facing off in the Federal Court. Picture: AAP/Steve Pohlner

“We need to know what she’s done with the information because she is someone we assume has met with (Nine).”

Mr Moses said he needed to “urgently” find out what, if anything, Ms Roberts or those associated with her had accessed from the email account and whether it had made its way to Nine’s lawyers.

“Part of the urgency, if it transpires Ms Roberts did in fact provide material, that was privileged to (Nine) there are some real issues that will arise in the trial as to what use was made and how it has potentially contaminated those proceedings,” he said.

Ms Roberts handed over documents to the Brisbane court registry, Justice Robert Bromwich said, but had not yet told the court if she had a lawyer.

The matter will return to court on June 9.