Ben Roberts-Smith in court battle over medical records

A court has heard details about ex-soldier Ben Roberts-Smith’s medical records ahead of his defamation showdown with Nine.

Ben Roberts-Smith has asked a court to block a newspaper’s lawyers from accessing his personal medical records as his legal battle over war crimes allegations ramps up.

The highly-decorated ex-soldier is suing The Age and Sydney Morning Herald over a series of reports which aired allegations relating to his deployment in Afghanistan.

The Victoria Cross recipient has denied these and is suing for defamation, claiming they falsely portrayed him as a criminal, but Nine have said they will defend the claim.

In the lead up to a Federal Court trial, lawyers for the newspapers issued subpoenas to two doctors, a GP and a psychiatrist, who treated Mr Roberts-Smith.

They also sought documents from a marriage counsellor who saw Mr Roberts-Smith and his ex-wife Emma Roberts prior to their separation.

Ms Roberts is set to give evidence for the Nine at the trial, which is scheduled to begin in Sydney on June 7.

The court has previously heard that Mr Roberts-Smith threatened to sue his ex-wife if she gave evidence at his trial.

Ben Roberts-Smith is suing Nine newspapers for defamation. Picture: Jonathan Ng

Mr Roberts-Smith’s lawyers on Friday asked Justice Anthony Besanko to set aside the three subpoenas arguing they had no relevance.

Mr Roberts-Smith’s barrister Matthew Richardson said that the subpoenas were “fishing” expeditions and were not seeking any information relevant to the case.

The court heard that Mr Roberts-Smith claims he suffered hurt feelings, depression and anxiety as a result of the publication of the articles.

The newspaper’s lawyers argue the information contained in the documents would therefore be relevant to both Ms Roberts’ believability as a witness and potential damages.

However Mr Richardson said the documents would include information about prescriptions for cold and flu treatment and other information which wasn’t relevant.

“There’s no attempt to direct the subpoena to an issue of credit,” Mr Richardson said.

“For instance, if the preoccupation is the fact my client was prescribed beta blockers, which is something his ex-wife refers to in her affidavit for anxiety and so on, then you would expect the subpoena would be directed to that issue.

“But it’s not, it’s just the file. In my submission that’s obviously fishing.”

Ben Roberts-Smith’s lawyers attempted to block opposition lawyers from accessing his personal medical records. Picture by Sean Davey.

But barrister Alexander Edwards, acting for Nine, dismissed the suggestion that Dr Parbodh Gogna was an ordinary GP and the documents sought from him would contain information about everyday health matters.

He pointed out that Dr Gogna was the chief medical officer and surgeon general of the Department of Home Affairs and Australian Border Force.

“There’s no evidence that Dr Gogna is any way capable of being characterised as a family GP,” Mr Edwards said.

He added that Nine were seeking to establish whether Mr Roberts-Smith suffered anxiety prior to the articles being published, which would go to damages suffered.

Justice Besanko reserved his decision.