FEDERAL COURT OF AUSTRALIA

Roberts-Smith v Roberts [2022] FCA 18

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 18 June 2021 be dismissed.

2.    The applicant pay the first respondent’s costs of the interlocutory application dated 18 June 2021.

3.    The interlocutory application dated 25 August 2021 be dismissed.

4.    The proceeding be listed for case management at 9.00 am on 28 January 2022 or such other date as may be fixed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1    By an originating application, the applicant, Mr Ben Roberts-Smith, claims interlocutory and final injunctive relief against his former wife, Ms Emma Roberts, the first respondent. The couple separated in January 2020. The second respondent is a company, RS Group Australia Pty Ltd, of which Mr Roberts-Smith, Ms Roberts and Mr Adam Veale are directors. Both interlocutory and final relief is only sought against Ms Roberts. This judgment is confined to further interlocutory relief sought against her.

2    Mr Roberts-Smith brings this proceeding in the context of three related defamation proceedings (NSD 1485, 1486 and 1487 of 2018) brought by him in this Court against three media publishers and a number of journalists. The three proceedings are being heard together. Mr Roberts-Smith has already been called as a witness and given oral evidence, and been cross-examined, in those proceedings. Ms Roberts, and the proposed third respondent to this proceeding, Ms Danielle Scott, are proposed to be called as witnesses for the respondents and will almost certainly be cross-examined by Mr Roberts-Smith during that proceeding. That defamation trial has been delayed by witnesses affected by the COVID-19 pandemic and at this stage is scheduled to resume on 2 February 2022.

3    Apart from certain overlapping factual detail, the originating application in this proceeding is not directly linked to the defamation proceedings at all. However, they are procedurally related, as Mr Roberts-Smith also seeks to examine Ms Roberts in this proceeding.

The first interlocutory application (contained in the 1 June 2021 originating application)

4    The first application for interlocutory relief in this proceeding by Mr Roberts-Smith was made on 1 June 2021, moving ex parte before me as duty judge on the interlocutory aspect of the originating application. Mr Roberts-Smith successfully obtaining certain interlocutory relief was the context and basis for the two subsequent separate interlocutory applications which are the subject of these reasons.

5    The originating application sought interlocutory and final injunctive relief, with the ultimate objective of restraining Ms Roberts from directly or indirectly dealing in any way with any confidential information in her possession, custody or control that was derived in any way from an RS Group email account of Mr Roberts-Smith, including restraining her from destroying, deleting or erasing any such information. The first interlocutory application sought immediate mandatory injunctive relief by requiring Ms Roberts to:

(a)    deliver to the Court Registry in Brisbane any information she had obtained from Mr Roberts-Smith’s RS Group email account referred to above; and

(b)    furnish two affidavits deposing to compliance with the delivery up order and deposing to the obtaining of that information.

6    Ms Roberts delivered certain documents to the Brisbane Registry and furnished a single affidavit dated 10 June 2021 by which she deposed to her compliance with the delivery up order by doing so, and also deposed to how she said she obtained the information. The present second and third separate interlocutory applications arise from the applicant’s dissatisfaction with Ms Roberts’ responses, including in subsequent affidavits.

7    Mr Roberts-Smith also sought leave for subpoenas to be issued to the law firm MinterEllison, Fairfax Media Publications Pty Ltd, and The Age Company Pty Ltd (being respondent publishers and their solicitors in the defamation proceeding) seeking any documents which had been provided to them by Ms Roberts. That leave was granted but nothing was produced in response. That is, neither the respondent publishers nor their solicitors produced any confidential information supplied to them by Ms Roberts. No challenge has been made to those responses.

Second interlocutory application (dated 18 June 2021) and third interlocutory application (dated 25 August 2021)

8    Ms Roberts initially responded to the first interlocutory application in her 10 June 2021 affidavit, in accordance with the orders made on 1 June 2021. Mr Roberts-Smith is dissatisfied with Ms Roberts’ responses, both in terms of the scope of the material provided, and in terms of the scope of the affidavit information furnished. This led to the two subsequent interlocutory applications. He contends that her explanation, as expanded upon and partially qualified in two subsequent affidavits, should not be accepted by the Court.

9    By the second interlocutory application, Mr Roberts-Smith seeks, inter alia:

(1)    that Ms Roberts be examined on his behalf in relation to compliance with the orders made on 1 June 2021; and

(2)    that Ms Roberts provide a further affidavit deposing to:

(a)    every person to whom she provided access to his RS Group email account; and

(b)    every person to whom she disclosed the contents of that email account.

The application also provided a means by which Ms Roberts could have objected to giving that evidence on the basis that it would incriminate her or make her liable to some civil penalty.

10    It is important to note that when this second application was made, Ms Roberts stated that she did not resist the application to be examined but pointed to the inadequacy of the basis advanced for that examination. However, such examinations are not a question of acquiescence. The Court must be satisfied that a proper case has been made for this to be ordered to take place. I deal with the limited case law on this issue below.

11    By the third interlocutory application Mr Roberts-Smith also seeks, inter alia:

(a)    to rely on affidavits filed after the close of evidence in the second interlocutory application as evidence in support of that application, which was allowed;

(b)    to join Ms Scott, a close friend of Ms Roberts, to the substantive proceeding; and

(c)    to join Ms Scott’s husband Mr Pill, to the substantive proceeding.

12    Mr Roberts-Smith intends, if joinder is ordered, to seeks orders akin to those sought against Ms Roberts on 1 June 2021, namely that Ms Scott and Mr Pill:

(a)    deliver to the Court Registry in Brisbane any information they had obtained from Mr Roberts-Smith’s RS Group email account; and

(b)    furnish two affidavits deposing to compliance with the delivery up order and deposing to the obtaining of that information.

13    Mr Roberts-Smith ultimately seeks to obtain similar final injunctive relief in the form of restraint orders against Ms Scott and Mr Pill akin to those sought against Ms Roberts.

14    In support of the second and third interlocutory applications, Mr Roberts-Smith relies upon four affidavits sworn by him, two affidavits from a principal of the firm of solicitors acting for him, Mr Paul Svilans, and an affidavit from RS Group director Mr Veale, referred to above. He also relies upon a bundle of documents produced in response to a 12 August 2021 notice to produce addressed to Ms Roberts, which was admitted into evidence without objection.

15    Ms Roberts relies upon three affidavits sworn by her. I have treated Ms Roberts’ third affidavit of 19 August 2021, being after the 13 August 2021 first hearing, as having been read. Although she did not appear on 17 September 2021 because the hearing that day dealt with only the third interlocutory application, Ms Roberts’ third affidavit was filed in compliance with an order of the Court and was referred to by Mr Roberts-Smith in his final written submissions.

16    No deponent of any affidavit was required for cross-examination. The two further applications for interlocutory relief therefore turned upon competing but untested affidavit evidence, written submissions and oral submissions over two hearing days, five weeks apart.

Background to the interlocutory applications

17    A complicating feature of the present interlocutory applications has been the interplay between submissions and evidence, necessitating detailing some of that evidence to a greater extent than might otherwise have been necessary. I first consider Mr Roberts-Smith’s affidavit dated 10 June 2021 as that provides the necessary background to this proceeding. I then turn to the limited authority on the examination relief that he seeks, and then return to the balance of the evidence.

18    In obtaining ex parte orders constituting the initial interlocutory relief sought and obtained on 1 June 2021, Mr Roberts-Smith relied upon an affidavit of a solicitor employed by his firm of solicitors, Ms Monica Allen. Ms Allen’s affidavit was on information and belief, including as to what she had been told by Mr Roberts-Smith about Ms Roberts. After an issue was raised by the Court as to whether there had needed to be disclosure of any personal relationship between Mr Roberts-Smith and Ms Allen when relying upon Ms Allen’s affidavit for an ex parte application, Mr Roberts-Smith elected to replace Ms Allen’s affidavit with his own affidavit dated 10 June 2021 for the purposes of the ongoing proceeding. Mr Roberts-Smith did not read or rely upon Ms Allen’s affidavit again. The two affidavits are substantially the same in content, but Mr Roberts-Smith’s affidavit is no longer on information and belief as to the source of information received by him that he relies upon.

The affidavit of Mr Roberts-Smith dated 10 June 2021

19    The affidavit of Mr Roberts-Smith dated 10 June 2021 sets out the following background facts to the two applications, both of which were filed after this affidavit. Mr Roberts-Smith, together with Ms Roberts and his accountant, Mr Veale, are directors of RS Group. In December 2012, the RS Group domain name and RS Group Australia email hosting account were registered by Mr Veale with a domain name register in Australia, Europe, India and the Middle East. Each of the three directors has their own individual RS Group email account.

20    All three directors have always had access to the domain name account and email hosting account. The latter enables each of the directors to perform account administrator functions such as opening and closing email accounts and accessing and reading emails without needing the passwords for the individual email accounts.

21    From 2012 to 2018, Mr Roberts-Smith engaged in paid public-speaking engagements through RS Group, predominantly using his RS Group email account to arrange that. Following the publication of a series of articles by Fairfax Media Publications Pty Ltd, The Age Company Pty Ltd and The Federal Capital Press of Australia in June 2018 and August 2018, which are the subject of the defamation proceedings, Mr Roberts-Smith asserts that he ceased receiving requests for commercial public-speaking engagements, that RS Group lost its only form of income, and that it no longer carries on any trading activity.

22    Since the end of 2018 until about 20 April 2021, Mr Roberts-Smith predominantly used his RS Group email account for personal use. This included corresponding with his legal advisers in relation to the defamation proceedings and the Afghanistan inquiry being conducted by the Inspector-General of the Australian Defence force, and corresponding with persons associated with his employer Seven Network (Operations) Ltd, all of which was confidential, and some of which included legal advice.

23    Mr Roberts-Smith separated from Ms Roberts on or about 20 January 2020. Prior to the separation he was aware that she accessed his RS Group email account from time to time and read emails. Mr Roberts-Smith asserts that he did not object to this on the basis that Ms Roberts maintained confidentiality of any communications between himself and his lawyers, and with persons associated with his employer, and did not divulge these communications to anyone else.

24    Mr Roberts-Smith describes receiving an email from Mr Veale on 16 December 2020, which he produces, concerning the expiry of the RS Group domain name and responding that he was content for that and the email accounts to be cancelled, forwarding that email traffic to Ms Roberts. They had a telephone discussion in which she requested that the domain and email accounts remain active and that she would pay the annual registration fee. A tax invoice for the renewal of the domain was produced showing payment by a credit card stated to belong to Ms Roberts.

25    On 23 February 2021, Mr Roberts-Smith and Ms Roberts entered into a Part VIIIA financial agreement pursuant to s 90C of the Family Law Act 1975 (Cth), and he assumed that Ms Roberts did not continue to access his RS Group email account after that date.

26    On 15 March 2021, an affidavit from a solicitor for the respondents in the defamation proceedings deposed to the intention to call Ms Roberts and Ms Scott as witnesses for the respondents in the defamation proceedings, with that affidavit being read in court in those proceedings on 7 April 2021.

27    On 12 April 2021, the respondents in the defamation proceedings served outlines of evidence setting out the evidence that Ms Roberts and Ms Scott intended to give. Mr Roberts-Smith produces copies of those outlines (omitting one attachment due to its length), as annexed to a second affidavit of a solicitor for the defamation respondents in those proceedings on 28 April 2021.

28    On 19 April 2021, the respondents in the defamation proceedings served a notice to produce addressed to Mr Roberts-Smith, which he annexes to his affidavit. By way of overview, this notice sought the production of:

(a)    draft chapters of his book;

(b)    email correspondence (from multiple email addresses which appear to belong to Mr Roberts-Smith, including his RS group email address) between the applicant and witnesses in the defamation proceedings (who have been assigned pseudonyms as Persons 5, 29, 32, and 35) and copies of any attachments to those emails;

(c)    a statement provided by Person 36 in both 2013 and July 2017;

(d)    a request by Mr Roberts-Smith to Person 36 in or about July 2017 to provide the statement referred to above; and

(e)    email correspondence between Mr Roberts-Smith and the Australian Special Air Services Association (SAS).

29    On or about 20 April 2021, after receiving the notice to produce, Mr Roberts-Smith searched his email accounts, including his RS Group email account, and located in his RS Group email account:

(a)    two emails dated 15 October 2017 and 22 April 2018 attaching copies of a draft manuscript, being the documents referred to in paragraph (a) above;

(b)    two emails dated 3 November 2018 and 3 July 2019 between him and Person 29 with attachments, being the documents referred to in paragraphs (b) above;

(c)    emails dated 13 August 2017 and 3 September 2017 between him and Person 36, being the documents referred to in paragraphs (c) and (d) above; and

(d)    an email dated 20 March 2021 from the SAS, being the document referred to in paragraph (e) above.

Copies of these emails are all annexed to the affidavit.

30    Because every document in the notice to produce was in his RS Group email account, Mr Roberts-Smith says he believes that Ms Roberts accessed that account as an account administrator without needing a password. Mr Roberts-Smith says that documents sought by the notice to produce were emails or attachments to emails sent to or from him using the RS Group email account, and further, were not recorded or stored anywhere other than in that email account. Necessarily, Mr Roberts-Smith must mean only that the documents were not stored anywhere else by him, because there was a counterparty to each such email, and there were also documents attached which could not have entirely originated in email form. This corollary is of some considerable importance to the soundness of the asserted belief that Ms Roberts had accessed the account.

31    On 20 April 2021, Mr Roberts-Smith conducted a further review of his RS Group email account and observed (supported by screenshots he produces of that email account) the following deletions and flagging of emails had taken place, which he says were not caused by him:

(a)    all emails prior to 13 February 2018 had been deleted from the inbox;

(b)    all emails prior to 14 February 2017 had been deleted from the sent items;

(c)    all emails prior to 22 April 2021 had been deleted from the deleted items; and

(d)    three emails in the email inbox had been flagged, including an email from Mr Roberts-Smith’s senior counsel dated 19 April 2021, sent to him in relation to the defamation proceedings.

32    On 30 May 2021, Mr Roberts-Smith conducted another review of his RS Group email account and observed that all emails prior to 24 May 2021 had been deleted from his deleted items, producing a screenshot of that account showing this.

33    Mr Roberts-Smith says that Ms Roberts met with the defamation respondents’ solicitors in Sydney on 24 May 2021, but did not provide any explanation or supporting material for how he could depose to this fact.

34    Mr Roberts-Smith produces an account log from the domain host for the RS Group domain. This log, he says, records logins to the RS Group email account from 23 February 2021 to about 31 May 2021. He observes again that such logins enable a person to access the email account of another RS Group user without being barred by a password, and notes that:

(a)    the log does not record which email account was accessed;

(b)    the log records the first time the RS Group email account was accessed in 2021 was on 28-30 March 2021, being shortly after the defamation proceeding respondents had advised that they intended to call Ms Roberts and Ms Scott as witnesses, but prior to outlines of evidence being served; and

(c)    the last login recorded was on 24 May 2021.

35    Mr Roberts-Smith says, without a source or attribution, but also without challenge or objection, that Ms Roberts and Ms Scott have used Virtual Private Networks (VPNs). He describes a VPN as giving a user online privacy and anonymity by creating a private network from a public internet connection, which disguises a user’s internet protocol (IP) address and physical location so that online actions are difficult to trace. Mr Roberts-Smith also says, again without a source or attribution, again also without challenge or objection, but probably without controversy, that Ms Roberts has resided in Brisbane, Queensland since January 2021 and that Ms Scott resides in Cairns, Queensland.

36    Mr Roberts-Smith says the only time he has accessed the RS Group Australia email hosting account in the past two or more years was on or around 20 April 2021, and that he typically accessed his RS Group Australia email account without logging on to the RS Group Australia email hosting account.

37    Mr Roberts-Smith also says that he is aware that Ms Monica Allen, a solicitor employed by his solicitors, logged into the RS Group Australia email account, using his password which he had given to her, on 2 May 2021.

38    Mr Roberts-Smith also deposes to there being numerous media articles published by the defamation respondents about the evidence that Ms Roberts will give against him, producing copies. However, I am unable to discern the relevance of that evidence to the present applications, being evidence that was not addressed in submissions. With no explanation for their inclusion in the affidavit, and no other submissions relying upon them, I will not consider that material further.

39    The crux of all this is that Mr Roberts-Smith believes that the notice to produce in the defamation proceedings was informed by confidential information of his that was provided to the respondents in those proceedings by Ms Roberts, despite the respondents not producing any such material provided to them by her. He asserts that she accessed the email account (included in the list of email accounts in category 2 of the notice) to obtain this information, and asserts she is the only person who reasonably could have provided this information to the respondents. This asserted belief is now also extended to Ms Scott and Mr Pill.

The examination sought

40    Before turning to the further evidence in the applications, I consider the very limited available authority that has any bearing on the issue of a respondent being required to submit to examination by an applicant in proceedings, other than in cross-examination on an affidavit that has been read. While Ms Roberts’ affidavits were read on the interlocutory application brought against her, she was not cross-examined upon them for that purpose (it plainly not being appropriate to cross-examine her on the substance of her evidence for which examination itself was sought).

41    The source of the power to make the examination orders sought by Mr Roberts-Smith is s 23 of the Federal Court of Australia Act 1976 (Cth), coupled with the inherent jurisdiction of this Court as a superior court of record created by statute. He accepts that he bears the onus of establishing grounds for the exercise of the discretion to make such orders. As will be seen, Mr Roberts-Smith asserts that the evidence upon which he relies raises a real question as to whether the production of material and the swearing of an affidavit has amounted to compliance with the ex parte orders made on 1 June 2021. He asserts that if this is accepted, the Court should permit him to examine Ms Roberts to determine the extent to which his confidential information has been accessed and misused by other persons, and to identify those other persons. This would produce the extraordinary outcome not just of ensuring, in the case of Ms Roberts, that the Court’s ex parte disclosure orders have been complied with (subject to privilege against self-incrimination being preserved), but also that she provide evidence for use against her in this proceeding.

42    I was not directed to any authority in which such an examination collateral to a substantive proceeding has been ordered in the past. The closest authority brought to my attention by Mr Roberts-Smith dealt with compliance with compulsory process, such as a subpoena, in Beaumont J’s decision of Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306. In that case, there was no production in answer to a subpoena, in circumstances in which an officer of a non-party company who had been subpoenaed to produce documents came forward in the courtroom, represented by counsel, and said that he had no document to produce. Counsel for the respondent, Arnotts Ltd, said that he did not accept that statement and asserted that there was reason to believe that documents of the kind sought did exist, and that he wished to put questions to the company officer. The non-party company objected. Later in his reasons, Beaumont J observed at 314 that there was no issue of the scope of the subpoena not being understood, obviating any need for an informal inquiry to that effect.

43    Beaumont J observed that neither the Federal Court of Australia Act nor the then Federal Court Rules 1979 (Cth) in terms deal with the question of whether this should take place and turned to a series of 19th century United Kingdom cases addressing compliance with a subpoena. This included Griffiths v Ricketts (1849) 7 Hare 299; 68 ER 122, with Wigram VC quoted by Beaumont J as having said, inter alia,

My opinion is, that the plaintiff’s counsel has a right, first, to call the witness upon his subpoena; secondly, to ask him whether he produces the deed described in the subpoena; and thirdly, if he do[es] not produce it, to ask him why he does not produce it; or other like questions confined to the mere purpose of production. Beyond this I am not called upon to express any opinion at the present moment.

44    Beaumont J also referred to early to mid-20th century New South Wales and New Zealand authority on the same topic, and an extra-judicial article by Justice Moffitt of the New South Wales Court of Appeal in Justice Glass’s 1970 compilation of papers on evidence (H H Glass, Seminars on Evidence (Law Book Co of Australasia, 1970) pp 10-11) suggesting real limits on how far such a process could go, specifically noting that information obtained from such an inquiry does not constitute evidence in the trial (that is, in the substantive proceeding) and is merely ancillary. A number of other articles and textbooks were also considered by his Honour.

45    Applying the burden of the foregoing, Beaumont J considered (also at 314) that the inquiry sought of the company officer should be confined to the adjectival question of the production of the documents the subject of the subpoena that were in the possession or control of the company. His Honour concluded that the officer should be called by Arnotts Ltd, sworn, examined by counsel for Arnotts Ltd and examined by the subpoenaed non-party company, but that none of that evidence was to be accepted in the principal proceedings or in subsequent proceedings, if any, in which it is alleged that there had been a failure to comply with the subpoena.

46    If these two interlocutory applications were to succeed, and the examinations sought were to be ordered in respect of Ms Roberts, the questions to be asked would be confined to the limited question of compliance with the Court’s ex parte orders. That is, they would not be permitted to extend to an evidence-gathering exercise in support of the substantive proceeding, let alone being permitted to extend to the apparently wider-ranging inquiry that Mr Roberts-Smith sought to conduct. There was simply no proper basis identified for going further, let alone a basis supported by authority or legislation. The proposed course would be antithetical to the very nature of our adversarial system of justice.

47    As will be seen, I ultimately conclude that no sufficient basis has been established by the applicant to examine Ms Roberts even in the limited way contemplated by Arnotts and the authority and other materials cited and quoted by Beaumont J.

48    The case brought for the examination of Ms Scott and her husband was even weaker. There was not even the antecedent event of there being no production, or asserted inadequate production in answer to a subpoena, nor any order of the Court for which it was alleged that there was non-compliance or incomplete compliance. Rather, that application was more in the nature of preliminary discovery aided by examination, but without the procedures or thresholds for such an application being attempted to be surmounted. There was no legal or factual foundation for that application other than what had been supposedly revealed by the examination application brought against Ms Roberts. No other basis for such extraordinary relief being granted was identified.

49    I now turn to the reasons for these findings.

The evidence and submissions in the second interlocutory application

50    The affidavit evidence upon which Mr Roberts-Smith initially relies for the interlocutory applications is set out above. In her 10 June 2021 affidavit in response, required by the ex parte orders made on 1 June 2021, Ms Roberts relevantly deposed that:

(a)    she did not accept various allegations in the affidavit of Ms Allen as truthful – which must be taken equally to apply to the substantially identical allegations made directly by Mr Roberts-Smith in his 10 June 2021 affidavit – but did not seek to address them in the affidavit;

(b)    she caused to be delivered to the Brisbane Registry all such information sought by the ex parte application within the required time, in strict compliance with the orders made;

(c)    the information was obtained by her at approximately 2.30 pm on 31 May 2021, by printing various documents out and placing them in an express post parcel addressed to the Court’s Sydney Registry, with one such document being in a separate envelope because it was or might be the subject of a privilege claim;

(d)    these documents were printed and sent in response to a subpoena served on her by Mr Roberts-Smith in the defamation proceeding, and she produced a copy of that subpoena;

(e)    she was aware there were emails contained in Mr Roberts-Smith’s email account which she had authority to access, and thus were in her control (I infer for the purposes of the subpoena);

(f)    during the period she was married to Mr Roberts-Smith, and prior to their separation, she had knowledge of various emails he had received, because they gave each other full access to one another’s email accounts with RS Group via the company’s domain address using a common username and password which they both knew and which had not changed as at 31 May 2021;

(g)    the email accounts were the property of the second respondent, RS Group, of which she remained a director;

(h)    she had not provided any person or entity with access to data from Mr Roberts-Smith’s email account;

(i)    the material that she accessed and produced had not been stored on any computer or data storage device, but rather was accessed via the domain address; and

(j)    the only use made by her, or her servants or agents, of the material was to comply with Mr Roberts-Smith’s subpoena.

51    Several affidavits of Mr Svilans, a principal of the firm of solicitors representing Mr Roberts-Smith, were also read for the application. However, Mr Svilan’s first affidavit, deposing on information and belief to Mr Veale’s role in relation to RS Group, has been overtaken by Mr Veale’s affidavit giving direct evidence. Mr Veale’s affidavit largely conforms with the affidavit evidence of Mr Roberts-Smith summarised above as to the arrangements in relation to the RS Group domain and email accounts. This includes that Mr Roberts-Smith and Ms Roberts have been directors of RS Group since about 11 August 2011, and remained so as at the date of Mr Veale’s affidavit, 26 August 2021. In summary, Mr Veale relevantly further deposes to:

(a)    having an RS Group email account and not needing to log in to the RS Group email hosting account in order to access his RS Group email account, with none of the work he undertakes on behalf of the company requiring him to log on to the hosting account;

(b)    the only time he has accessed the RS Group Australia email hosting account in about the last four years to the best of his recollection being on 6 and 8 May 2021, following a discussion with Mr Roberts-Smith during which he said words to the effect: “I think Emma has been accessing my RS Group emails. Fairfax’s lawyers have details of my emails – how else could they know that stuff?”;

(c)    never having accessed Mr Roberts-Smith’s RS Group Australia email account or provided any emails stored in that account to any third parties, making specific reference to the respondents in the defamation proceedings;

(d)    never having provided anyone, other than the other directors, with the password to the RS Group Australia email hosting account, specifically naming Danielle Scott, Darren Pill, Bryce Laning and Jessica Simpson, whom he does not know (being persons other evidence reveals might have had such access in the sense that a computer at their address was apparently used to gain such access, discussed below);

(e)    never having given any other person access to any email sent or received from any of the RS Group Australia email accounts or any email sent or received using Mr Roberts-Smith’s RS Group email address.

52    It should be noted that the evidence relied upon by Mr Roberts-Smith includes a suggestion of access by someone using account details apparently connected to Mr Laning and Ms Simpson, but there is no evidence that they or anyone associated with them had any connection, direct or indirect, to Ms Roberts. This tends to undermine the inference sought to be drawn that she must have been the source of information used to access the RS Group email accounts. I return to this issue later in these reasons.

53    Mr Svilan’s second affidavit dated 18 June 2021 relevantly produces copies of the documents produced by Ms Roberts in response to the interlocutory orders made in this proceeding, as noted above in the summary of her evidence, subject to withholding and redacting material that is either the subject of non-publication orders made in the defamation proceedings, or the subject of a claim of legal professional privilege. He also produces 177 pages of what are described as “chat messages” produced by Ms Roberts that took place between her and Ms Scott, being in effect conversations conducted by text messages.

54    Submissions for Mr Roberts-Smith dated 2 July 2021 refer to much of the background material summarised above, and the evidence now directly from Mr Veale. Those submissions summarise material produced by Ms Roberts in answer to the subpoena issued in the defamation proceeding, Mr Roberts-Smith having apparently obtained leave to use that material in this proceeding on 20 May 2021. It is not in doubt that Ms Roberts obtained that subpoena material from Mr Roberts-Smith’s RS Group email account because that is what she deposes to having done for the purpose of complying with that subpoena. The documents are summarised in Mr Roberts-Smith’s 2 July 2021 submissions as follows (omitting footnotes):

(a)    an email sent by the Applicant to Person 29 from the Applicant’s RS Group Australia Pty Ltd email account dated 29 June 2019 containing vision that is relevant to a matter that is the subject of the defamation proceedings;

(b)    an email sent by the Applicant to Person 29 from the Applicant’s RS Group Australia Pty Ltd email account dated 3 July 2019 containing an image that is relevant to a matter that is the subject of the defamation proceedings;

(c)    an email sent by Person 5 to the Applicant’s RS Group Australia email account dated 15 June 2018 containing a document that refers to matters concerning the IGADF Inquiry which may be subject to a non-disclosure requirement pursuant to section 21 of the Inspector General of the Australian Defence Force Regulation 2016 (IGADF Regulation);

(d)    a document over which the Applicant claims legal professional privilege. The document is an undated file note prepared by Mark O’Brien Legal for the dominant purpose of Mark O’Brien Legal providing the Applicant with legal advice arising out of the Applicant’s attendance at an interview with the IGADF and which contains information that is subject to a non-disclosure direction pursuant to section 21 of the IGADF Regulation; and

(e)    chat messages between the First Respondent and Ms Danielle Scott.

55    Mr Roberts-Smith submits that each of those documents above at (a) – (d) belong to him and are his private communications, and that the document described at (d) above is a legally privileged communication. No suggestion has been made that they were not documents that fell within the terms of the subpoena addressed to Ms Roberts in the defamation proceedings, although it is submitted, in a conclusory way, that the explanation given by her “beggars belief”. It was never explained why that would be so. I did not find Ms Roberts’ explanation as to how she came to access those documents inherently unbelievable, especially as she set out in detail how she understood the terms of the subpoena, and why she made access at that time in order to comply with the subpoena.

56    The crux of the applicant’s submissions of 2 July 2021 is that Ms Roberts’ affidavit assertion that she had not provided any person with access to the data from Mr Roberts-Smith’s RS Group email account are contradicted by the “chat messages” between her and Ms Scott, as considered in more detail below. Mr Roberts-Smith urges the Court to infer from these messages that Ms Scott and/or Mr Pill have accessed his RS Group email account from time to time.

57    In supplementary written submissions dated 2 August 2021, the applicant further asserts an examination of Ms Roberts is necessary to “ascertain whether [Ms Roberts], despite her assertions to the contrary, has accessed the Applicant’s RS Group email account or allowed it to be accessed by a third person for the purposes of providing or disclosing to third persons (including the respondents to the defamation proceedings …) the Applicant’s privileged and confidential information”. He submits that Ms Roberts’ affidavit evidence that she has never provided Ms Scott or any other person with access to his RS Group email account, is either knowingly or recklessly false. He submits that this demonstrates that she needs to be examined in order to get to the truth of the matters that she was required to disclose by reason of the Court’s ex parte orders. He asserts that there is a real concern that she has not honestly and fully disclosed with whom she has provided access to his RS Group email account, or access to material contained in that account. Mr Roberts-Smith extracts certain of the chat messages to advance these submissions.

58    Ms Roberts’ second affidavit dated 9 July 2021 relevantly contains her response to the submissions for Mr Roberts-Smith dated 2 July 2021. I will address each chat message conversation together with the explanation that Ms Roberts gave for it in her second affidavit.

The first chat message conversation

59    The first chat message conversation between Ms Roberts and Ms Scott took place on 5 April 2020 as follows (passage relied upon emphasised, minor errors in original):

19.53 – Ms Roberts:    Hey out of curiosity do you reckon brs or Adam [Veale] are monitoring my ra [sc. RS] group emails?

19.54 – Ms Roberts:    They appear on the desktop as unopened but when I refresh on my phone they’ve been read

 20.39 – Ms Scott:    All of them?

 20.40 – Ms Roberts:    The Rs group ones yes

 20.40 – Ms Scott:     Is that before you have read them on the phone

20.40 – Ms Roberts:    They’re unopened on desktop but seem to be open on my phone when I go to emails

 20.41 – Ms Roberts:     Yeh

 20.41 – Ms Scott:     So you’re not opening them on the desktop?

20.41 – Ms Roberts:     If they were reading them on server I’d see them opened ok desktop right?

 20.42 – Ms Scott:     Correct

 20.42 – Ms Roberts:     Ok

20.43 – Ms Scott:     If you are opening them on your desktop they are going to appear as read on your phone too

 20.43 – Ms Roberts:     But I haven’t opened

 20.43 – Ms Scott:     I would need to check

60    Mr Roberts-Smith places great stock in the last words uttered by Ms Scott “I would need to check”. He contends that this should be read as Ms Scott telling Ms Roberts that she will access and check the RS Group email account, implicitly and relevantly his email account. On any view there is hardly even a very weak basis to draw such an inference. It does not, for example, exclude the more readily available inference that this was an abstract technical inquiry by Ms Roberts as to the ordinary interaction between desktop computer access and mobile device access to the same email account, and whether reading an email from such an account on one device causes it to be recorded as having been read when accessed on the other device, being the question that Ms Roberts is overtly asking. Viewed in that way, access to the RS Group account would not have been necessary to answer the question, and the words “I would need to check” do not signify any such access being able to take place. There is no apparent reason why the weaker inference should be drawn, even without the reasoning that follows.

61    In relation to the 5 April 2020 chat message conversation above, Ms Roberts deposes that she has never provided Ms Scott with access to the RS Group account. She further deposes that the words “I would need to check” at 20.43 are a response by Ms Scott to her question at 19.53 (7.53 pm) “Hey out of curiosity do you reckon brs or Adam are monitoring my ra group emails?” It is readily apparent from various of the text exchanges that Ms Scott has assisted Ms Roberts with other technological matters, considered in more detail below. I therefore conclude that the most credible inference to draw is that Ms Scott was being asked to assist Ms Roberts with checking, as a technical question, how her RS Group email account would operate in terms of access being recorded as between two access devices. This is a means of answering the question that Ms Roberts deposes she was asking. It does not readily support the inference that the check that Ms Scott says she will conduct entailed actual access to the RS Group email account.

62    Even if I was to draw the weaker inference that Mr Roberts-Smith seeks, and conclude that what was being suggested by Ms Scott was actual access to the RS Group email account, it was common ground that Ms Roberts could use the same administrator access privileges to access her own account (or authorise another person to access her account) which would be indistinguishable in terms of access logs from someone accessing Mr Roberts-Smith’s account. Mr Roberts-Smith did not assert, and indeed could not reasonably assert, that Ms Roberts was prohibited by him from accessing her own emails in whatever manner she chose, including via any assistance that Ms Scott could give. This is a further viable and innocent explanation for the sentence that Mr Roberts-Smith seeks to impugn, and I find this also more credible than the inference that Mr Roberts-Smith seeks to draw.

63    For the foregoing reasons, I am therefore not willing to draw the inference that Mr Roberts-Smith seeks, although I revisit this issue by reference to further evidence obtained.

The second chat message conversation

64    The second chat message conversation between Ms Roberts and Ms Scott took place on 16 June 2020 as follows (passages relied upon emphasised):

 20.02 – Ms Scott:    How much do u love me?

 20.02 – Ms Roberts:    Ha ha why

 20.02 – Ms Roberts:     A lot

 20.02 – Ms Roberts:     What have you done

 20.03 – Ms Scott:     Quick thinking...

 20.03 – Ms Scott:     I have the first four chapters of the book

 20.03 – Ms Scott:     The one that doesn’t exist

20.04 – Ms Scott:     I also have a very graphic email about everything he was asked about and also mentions your interviews with Peter

65    Some further messages followed the relevant extract above, which do not bear repeating, but demonstrate some ill-feeling by Ms Roberts towards Mr Roberts-Smith. It is apparent enough that Mr Roberts-Smith feels similarly towards her. I keep this acrimony in mind in considering all of the assertions that they make against each other. However, I do not place much weight on it. Such conduct is far from unexpected as between a separated couple, particularly in the circumstances of this matter, although it is unfortunate that private matters must be considered publicly in this way.

66    In oral submissions for the second interlocutory application, Mr Roberts-Smith relies upon Ms Scott’s statements “I have the first four chapters of the book” and “I also have a very graphic email about everything he was asked about and also mentions your interviews with Peter”. He submits that the first passage is a reference to his draft manuscript, which was the subject of part of the notice to produce; and that the phrase in the second passage “very graphic email about everything he was asked about” is a reference to the document over which he claims legal professional privilege.

67    In relation to the 16 June 2020 chat message conversation above and the first statement concerning the book, Ms Roberts in her 9 July 2021 affidavit denies that “I have the first four chapters of the book” supports any inference that she had provided Ms Scott access to Mr Roberts-Smith’s RS Group email account. Instead, she deposes, Ms Scott was referring to an email chain that Mr Roberts-Smith had sent to Ms Roberts, attaching a draft of his book, that she had forwarded to Ms Scott almost exactly two years earlier. She further deposes that at the time of this chat message conversation, she had forgotten that she had forwarded the email to Ms Scott, which accords with the tenor of the chat conversation. She deposes that Ms Scott had sent the message to her because, at that time, she had retained family lawyers with respect to her marriage breakdown, and the existence of the book was potentially relevant to the property pool but she could not find the email or its attachment. This also accords with the tenor of the chat conversation, part of which is extracted above. Ms Roberts produces a copy of that email chain that was forwarded to her, and a copy of the further email chain as forwarded to Ms Scott. The latter email chain comprises the following:

(a)    an email sent at 6.49 pm on 22 April 2018 from Mr Peter Pedersen, who seems to be the ghost writer of Mr Roberts-Smith’s book, to Mr Roberts-Smith’s RS Group email address forwarding three draft chapters that he had written and commenting on them and on other chapters that he was proposing to write – I note that the attachments to the email are Word documents called “TWO”, “THREE” and “FOUR”, which on a casual perusal might suggest four chapters rather than the three had been attached if the absence of “ONE” was not picked up;

(b)    a forwarding email sent at 7.22 pm on 25 June 2018 from Mr Roberts-Smith’s RS Group email address to Ms Roberts’ RS Group email address, apparently sent from an iPhone, but without any text;

(c)    a further forwarding email sent at 7.31 pm on 25 June 2018 from Ms Roberts’ RS Group email address to Ms Scott’s email address, also apparently sent from an iPhone, but without any text.

68    In her affidavit, Ms Roberts indicates that she did not produce the manuscript attached to the email because of its size, but could produce a copy to the Court if required. Mr Roberts-Smith did not make any request to produce that manuscript, nor dispute that this was in fact attached.

69    In his second affidavit dated 16 July 2021, Mr Roberts-Smith deposes to having no recollection of having forwarded the email to Ms Roberts, and later suggests she might have accessed his account to forward it to herself. Mr Roberts-Smith also asserts that at no time did he give consent to Ms Roberts to provide copies of any of his emails to Ms Scott, with the contents of the draft chapters being personal to him, for reasons he details but do not need to be repeated. This amounts to a concession that the email to him containing the manuscript was genuine. Therefore, it appears that the chapters were not obtained by Ms Scott accessing his RS Group email account after they had separated, as alleged.

70    There is no need to form any concluded view about whether or not Ms Roberts forwarded the email from Mr Roberts-Smith’s RS Group email address to her own RS Group email address, although it is not an unreasonable inference to draw given the similarity in the mode of forwarding. What matters is that it is clear that the email to Mr Roberts-Smith from Mr Pedersen was genuine, and the subsequent forwarding did take place two years prior to the second chat message conversation.

71    In relation to the 16 June 2020 chat message conversation above and the second emphasised statement “I also have a very graphic email about everything he was asked about and also mentions your interviews with Peter”, Ms Roberts further deposes in her 9 July affidavit that this is a reference to the email sent by Peter Pedersen. This is borne out by the content of Mr Pedersen’s email which includes “My description of Em’s [that is, Emma Roberts’] thoughts and feelings in the chapter was based on my interviews with her – they were great!”, and parts that could fairly be described as graphic in terms of describing events in Afghanistan, such as ambushes.

72    The inference sought to be drawn that this statement was a reference to a privileged document was weak to non-existent, whereas the explanation that Ms Roberts gives is logical and coherent and supported by the terms of the email chains produced which I am satisfied are authentic for the reasons already given. This conclusion also bolsters the reliability of Ms Roberts’ affidavit evidence and correspondingly detracts from the reliability of Mr Roberts-Smith’s affidavit evidence.

73    Also, as adverted to above, Mr Roberts-Smith’s assertion in his 10 June 2021 affidavit that none of the documents sought in the notice to produce were recorded or stored anywhere other than in the RS Group email account is incorrect. The manuscript at least must have been recorded or stored elsewhere other than in his email account, as it was, in fact, sent to him, and not created by him.

74    In any event, there is no suggestion that the relevant emails and chapters of the manuscript of the book contained any legal communication, or communication between Mr Roberts-Smith and his employer, which were apparently the conditions upon which Ms Roberts was required not to divulge any contents of the email account prior to 20 January 2020. Forwarding the email to Ms Scott at that time could not have been a breach of that supposed agreement.

75    There is a complete and credible direct explanation of how Ms Scott had obtained access to a manuscript of Mr Roberts-Smith’s book, without her being given access to his RS Group email account. With that, the whole foundation for the adverse inference that Mr Roberts-Smith seeks the Court to draw falls away as to the manuscript.

The third chat message conversation

76    The previous chat messages were raised in relation in the first set of submissions for the second interlocutory application. The next chat message conversation was first raised in the applicant’s supplementary submissions filed on 2 August 2021, and subsequently at the hearing of the second interlocutory application, on 13 August 2021.

77    The third chat message conversation (but fourth in time) between Ms Roberts and Ms Scott took place on 16 December 2020 as follows (passages relied upon emphasised):

22.39 – Ms Scott:    U awake?

22.39 – Ms Roberts:     Yeh

22.39 – Ms Scott:     Ok I will try and log into your account

78    Mr Roberts-Smith contends that the words “Ok I will try and log into your account” is Ms Scott saying that she will try to log in to Ms Roberts’ RS Group email account. There is no foundation for inferring that is what “account” is referring to. In Ms Roberts’ second affidavit dated 9 July 2021, she deposes to Ms Scott referring to logging in to her (that is, Ms Roberts’) myGov account. She says Ms Scott was helping her to set up this account which she required for the purpose of child maintenance payments, and that the entire message exchange between them includes media files that she sent to Ms Scott to set up the myGov account for her.

79    To make good that explanation, Ms Roberts relies upon the passages Mr Roberts-Smith identifies upon above being put in context as follows, showing the media files that she sent to Ms Scott:

21.06 – Ms Roberts:    <Media omitted>

21.06 – Ms Roberts:    <Media omitted>

21.06 – Ms Scott:     [thumbs up emoji]

21.07 – Ms Roberts:     No!! And a qpol guy!!

21.07 – Ms Scott:     I have to do an exam now ... so will see if I get to lt tonight.

21.07 – Ms Scott:    I am in office tomrrow [sic]

21.08 – Ms Roberts:    Yeh no stress mate! Good luck [smiley emoji]

22.39 – Ms Scott:     U awake?

22.39 – Ms Roberts:     Yeh

22.39 – Ms Scott:     Ok I will try and log into your account

80    Ms Roberts deposes to the first two 9.06 pm (that is, 21.06) entries being the sending of copies of her driver licence and passport, to which Ms Scott responds that she would see if she could get to it that night. Ms Roberts produces screenshots of the chat conversation, which clearly show that the first “<Media omitted>” entry is her driver licence and the second “<Media omitted>” entry is her passport. It follows that once again, the inferences Mr Roberts-Smith seeks to have the Court draw were based upon an incorrect and suspicious interpretation of what was being said, while Ms Roberts’ response has been accurate, reliable and credible.

The fourth chat message conversation

81    The fourth chat message conversation relied upon in the second interlocutory application took place between Ms Roberts and Ms Scott on 20 June 2020, as follows (passages relied upon emphasised):

20.26 – Ms Scott:    BOOM – THERE IT IS !

20.26 – Ms Scott:    MONICA’S ADDRESS

20.26 – Ms Roberts:    What now??

20.26 – Ms Roberts:    Huh??

20.26 – Ms Scott:     <Media omitted>

20.27 – Ms Roberts:    HOLY FUCK WHAT THE ACTUAL FUCK

20.29 – Ms Roberts:    God I love you

20.29 – Ms Scott:     [prayer hands emoji]

20.30 – Ms Roberts:    Yeh we’re not in a relationship

20.30 – Ms Scott:     Yes

20.30 – Ms Roberts:     With who?

20.30 – Ms Scott:     It was on 30 March

20.31 – Ms Roberts:    Why get it sent to her??

20.31 – Ms Roberts:    Oh??

20.31 – Ms Roberts:    I’ll have to look at that date in my diary

20.31 – Ms Scott:    Yep

20.32 – Ms Scott:    Have a good night I - oh you just did I bahahaha

20.32 – Ms Roberts:    He was probably staying with her for a period of time

20.32 – Ms Scott:     Yep

20.33 – Ms Scott:     <Media omitted>

82    The above chat message exchange was not initially relied upon in Mr Roberts-Smith’s first set of submissions for the second interlocutory application. It only came to the fore at a later stage, in supplementary submissions filed on 2 August 2021. It was essentially the basis for a new allegation of a circumstance where Ms Roberts gave Ms Scott access to the RS Group account.

83    At this point, it is worth noting that the hearing of the second interlocutory application had initially been listed for 22 July 2021, but was adjourned to 13 August 2021 at the request of Mr Roberts-Smith, and without opposition from Ms Roberts. It was adjourned “following the issue of a subpoena to Ms Danielle Scott on 16 July 2021, which may result in the production of further material upon which the Applicant may rely at the hearing of his interlocutory application filed on 21 June 2021 [dated 18 June 2021, the second interlocutory application]”. 

84    In response to these supplementary submissions and this further chat conversation, in further submissions filed on 6 August 2021 Ms Roberts referred to correspondence with the solicitors for Mr Roberts-Smith in early July where she sought confirmation of which chat messages the applicant specifically sought to rely upon in respect of the relief sought. As noted above, 177 pages of messages, originally produced by Ms Roberts in compliance with a subpoena issued at the behest of Mr Roberts-Smith in the defamation proceeding, were annexed to the second affidavit of Mr Svilans. The response to that correspondence was as follows:

The Applicant will rely upon the WhatsApp messages in their totality. If your client chooses to explain certain messages only, that it [sic] is a matter for her.

85    Ms Roberts submits that:

(a)    it might reasonably be expected that Mr Roberts-Smith, with the resources available to him, should provide full and frank notice of the actual allegations against her to enable her to properly respond to them, and that he was apparently unwilling to do so;

(b)    it was unreasonable, unfair, and disproportionate for her to continue to swear multiple affidavits to address allegations which Mr Roberts-Smith was only willing to make in a piecemeal manner;

(c)    Mr Roberts-Smith wished to conduct this matter in a way which prolonged personal litigation against her as his former wife, and placed personal stress upon her and her family;

(d)    this was particularly egregious since he knew Ms Roberts had been subpoenaed to give evidence in the defamation proceedings for the respondents; and

(e)    there was a further innocent explanation for the above message, a submission I explore further below.

86    Orders were made, by consent, for further submissions and evidence to be filed before the adjourned hearing date. Ms Roberts cannot walk away from agreeing to receive new submissions or evidence. However, it was not for her to have to ask Mr Roberts-Smith to identify any further or other allegations that were made or might be made. If this matter were being conducted within the Court’s rules for formal pleadings, Ms Roberts may have been able to seek particulars, and most notably, would have had much more time to do so. The conduct of this matter is such that that is not how the fact finding is occurring. It was unreasonable of Mr Roberts-Smith not to identify in advance all the allegations upon which he relied. Merely directing Ms Roberts to a 177-page annexure was not sufficient notice of all the matters that she may have been required to answer. This is especially so as, under the consent orders, she only had four days to prepare evidence and submissions in response.

87    Further, the basis for Mr Roberts-Smith seeking the adjournment, and for the Court granting the consent orders, was apparently because new evidence may have been imminently received via subpoena. There was an absence of anything new in the further submissions. There was only a further identification of the above additional chat message, and other evidence already filed. There was certainly no new material obtained through a subpoena issued to Ms Scott.

88    I now return to Ms Roberts’ submission that there was an innocent explanation for this chat message.

89    Mr Roberts-Smith’s third affidavit dated 2 August 2021 is relevant to this chat message. In that affidavit he deposes to purchasing a pair of Apple AirPods on around 30 March 2020 using Velocity frequent flyer points through the Velocity Rewards Store. These AirPods were a gift to Ms Monica Allen, as already noted, an employed solicitor with the firm of solicitors acting for Mr Roberts-Smith. Mr Roberts-Smith says he gave her this gift because he was grateful for her efforts in assisting him with his ongoing legal matters. He nominated her home address in Sydney as the delivery address for the AirPods to ensure that they would be received because Sydney had gone into lockdown due to the COVID-19 pandemic and he understood she now worked from home. Annexed to the affidavit is an email received at his RS Group email account at 1.05 pm on 30 March 2020, being an email from the Velocity Rewards Store confirming the purchase details for the AirPods. He did not ever send a copy of that email to either Ms Roberts or Ms Scott, nor informed them of the solicitor’s home address.

90    From this evidence, Mr Roberts-Smith seeks to have the Court draw an inference that the above chat conversation reflects his RS Group email account being accessed by Ms Scott, because of the references to the solicitor’s home address. Mr Roberts-Smith says this inference is also supported by the bundle of material produced in response to a notice to produce by Ms Roberts, page 55 of which reproduces a text from Ms Scott sent at 8.33 pm on 20 June 2020 (being the last chat message entry in the chain, recording “<Media omitted>”), which is a real estate listing image of the solicitor’s apartment with an address. The earlier “<Media omitted>” text at 8.26 pm on 20 June 2020 was not produced because the text had not been retained.

91    Ms Roberts responded to the above evidence and the supplementary submissions by a third affidavit dated 19 August 2021, which I ordered to be filed following the adjourned interlocutory hearing on 13 August 2021, and which is necessarily read. In it, she deposed to a number of matters, which have to be detailed because of the way these applications have been brought and conducted. Her evidence in this affidavit is as follows.

92    Shortly after Ms Roberts and Mr Roberts-Smith separated on 20 January 2020, she retained solicitors for the purposes of finalising their relationship. On about 5 April 2020, she received a telephone call from the property manager of a property the couple owned in Perth which was tenanted. The property manager informed her that she had not been able to get in touch with Mr Roberts-Smith and was seeking approval for a renewal of the lease and agreement for the rent to be reduced based on hardship grounds following the onset of COVID-19. Following this conversation, she believes the same day, she logged on to the RS Group domain and checked her email and also Mr Roberts-Smith’s email to see whether any emails had been received from the property manager, finding they had not (she actually deposes to checking for emails received “by” the property manager, but that seems to be a typographical error, and nothing turns on this).

93    She accessed both email accounts on 5 April 2021 using the common username and password from which they both accessed their emails. When she accessed Mr Roberts-Smith’s email, she noticed an email from the Velocity Rewards Store, being the email that he produces by his third, 2 August 2021 affidavit. She describes it as an email which records a purchase of Apple AirPods using Velocity frequent flyer points. Before she opened the email she knew this email was a purchase using Velocity frequent flyer points, as Velocity was the frequent flyer membership offered by Virgin Airlines, with points being accumulated by travelling Virgin Airlines or by using credit cards attached to Velocity. She and Mr Roberts-Smith both had credit cards attached to Velocity. She opened the email because she recalled being told by her then solicitor to provide information about all of Mr Roberts-Smith’s and her assets. She also recalled her solicitor mentioning that frequent flyer points form part of the assets. On this basis, she wanted to know what Mr Roberts-Smith had bought using frequent flyer points.

94    When she opened the email, she noticed that Mr Roberts-Smith had two listed addresses, the first being his residential address in Brisbane. The second address, the delivery address, was in Sydney. She was not aware that he had an address in Sydney whilst they had been separated for three months. He had not told her that he had a Sydney address. He did spend quite a bit of time in Sydney, but she had always thought this was at a hotel. When they travelled there together they had stayed in a hotel.

95    The fact that Mr Roberts-Smith had a Sydney address concerned her for two reasons. The first reason was that their twin daughters, who were at the time 9 years old, might be staying with him at that Sydney address when they were with him. The second reason was that if he had purchased a property in Sydney, it should have formed part of the property pool for the purposes of their separation. She took a screen shot of the email which recorded the order for AirPods and his Sydney address. She wanted to keep a copy of this address for the family property dispute.

96    On 5 April 2020, she sent a copy of the screen shot to Ms Scott, using the messenger service Signal, and produces a copy of that message. Signal is an encrypted messenger service that Mr Roberts-Smith requested that she and Ms Scott use for their communications with each other. Mr Roberts-Smith requested that both she and Ms Scott set their Signal accounts to automatic deletion of all messages so she therefore did not have a copy of the message. She obtained a copy of the message from Ms Scott for the purpose of swearing her affidavit. The media omitted file recorded in the WhatsApp message exchange with Ms Scott on 20 June 2020, at 20.26 (8.26 pm) is a copy of the Signal message Ms Roberts sent to Ms Scott on 5 April 2020.

97    The reason why Ms Scott sent the message to Ms Roberts later on 20 June 2020 was because Ms Roberts had long suspected that Mr Roberts-Smith had been maintaining an extramarital affair with Ms Allen, one of the solicitors acting for him in this proceeding and the defamation proceedings. Ms Roberts had quite a few dealings with Ms Allen, both professionally and socially. That this suspicion was long held is demonstrated by the chat messages annexed to the first affidavit of Mr Svilans.

98    On 13 November 2019, while she and Mr Roberts-Smith were still together and residing at the former matrimonial home, Ms Roberts accessed their jointly-owned Apple computer and accessed a number of photographs via the iPhoto icon on the desktop. At that time she suspected that Mr Roberts-Smith was having an extra-marital affair with Ms Allen, so she went through the photos and found a photo of a text message from Mr Roberts-Smith to Ms Allen on 29 October 2019.

99    Ms Roberts had a number of WhatsApp exchanges with Ms Scott about her suspicions. She took a screenshot of the message on the computer screen with her smartphone and produces it. She no longer has access to the Apple computer that she took the screen shot of with her smartphone, as Mr Roberts-Smith burnt that computer before they separated on 20 January 2020.

100    During one of the meetings Ms Roberts had with Ms Allen, she recalled that Ms Allen said she lived in a particular suburb in Sydney. She recalled that at some point she told Ms Scott this, but cannot recall when this occurred. Despite knowing where Ms Allen lived, she failed to link the address to the 30 March 2020 Velocity email. Ms Scott, in whom she confided about these matters, drew the connection, and sent Ms Roberts’ Signal message, with the Velocity email address, back to her on 20 June 2020.

101    Ms Roberts repeats her previous sworn evidence that she has never provided any person with access to Mr Roberts-Smith’s email account.

102    The view I have formed of this evidence is that Ms Roberts has candidly disclosed the circumstances by which she came to have an image of the Velocity email. It demonstrates that she did access Mr Roberts-Smith’s RS Group email account for a legitimate purpose arising from the jointly-owned rental property, and then chanced upon the Velocity email. Mr Roberts-Smith submits that this contradicted Mr Roberts’ previous statements that she had never accessed the RS Group email account, which she did not in fact say. I will discuss this further later in these reasons. However, the fact is that this affords no basis for the assertion that Ms Roberts has provided Ms Scott or anyone else with access to Mr Roberts-Smith’s RS Group email account. It also affords no basis for his case that she accessed his email account for a nefarious purpose. In all the circumstances disclosed, I am not satisfied that this advances Mr Roberts-Smith’s case for the interlocutory relief he seeks.

103    Mr Roberts-Smith contends overall that it is open to infer, upon the basis of all the chat message conversations relied upon, that Ms Scott has accessed his RS Group email account from time to time using a password given to her by Ms Roberts. He asserts that this raises an issue as to the adequacy or truthfulness of Ms Roberts’ evidence that she had not provided any person with access to data from his RS Group email account. He also contends that it is open to infer that Ms Scott has passed on emails, data or other information retrieved from his RS Group email account to Ms Roberts from time to time.

104    I reject each of the above submissions. Ms Roberts has provided detailed explanations for each conversation, and accompanying evidence to support her assertion that at any stage where she did access the RS Group account, she did not do so for the purpose that the applicant asserts and relies upon. Mr Roberts-Smith’s inferential case in respect of the second interlocutory application has been shown not to be built on well-founded belief. None of the inferences he sought the Court to draw have sufficient foundation.

The evidence and submissions in the third interlocutory application, also applied to the second interlocutory application

105    As mentioned above, orders were made following the hearing on 13 August 2021 to allow for all of the allegations made against Ms Roberts to be properly answered. Ms Roberts filed an affidavit to address the fourth chat message conversation on 19 August 2021.

106    Order 4 of those orders required that, by Wednesday, 25 August 2021, Mr Roberts-Smith advise Ms Roberts whether he still pressed to examine her. If he did, the orders required that he file and serve any submissions in response to any further affidavit or submissions of Ms Roberts. Apparently in lieu of complying with that second order, Mr Roberts-Smith instead chose to file the third interlocutory application in this matter on 25 August 2021. The general terms of that application are set out earlier in these reasons. By this application, Mr Roberts-Smith also sought leave to rely on affidavits filed after the close of evidence in the second interlocutory application as evidence in that application, which, because of the overlapping subject matter, it was only practical that I allow. Accompanying submissions also sought a further oral hearing to address this interlocutory application.

107    The final aspect of Mr Roberts-Smith’s case therefore turns on evidence obtained and submissions made after the hearing of the second interlocutory application seeking orders for the examination of Ms Roberts. They are principally directed to the third interlocutory application, seeking to join Ms Scott and her husband.

108    I suggested to Mr Roberts-Smith’s senior counsel during the hearing of the third interlocutory application that the second and third interlocutory applications were intertwined, such that if the application as against Ms Roberts fails because I am not satisfied that she gave any other person access to Mr Roberts-Smith’s email account, then the joinder case will also necessarily fail. Senior counsel submits that the outcome of the third application will not necessarily be determined by the outcome of the second application, but concedes that my findings on the second application may feed into the third. I consider the interlocutory applications to be so linked that the third application could only succeed if the second application succeeded.

109    I also need to address the submission by Mr Roberts-Smith that Ms Roberts has conceded, through her solicitor, that she gave Ms Scott unfettered access to the applicant’s RS Group email account. This submission is made by reference to a transcript excerpt from the hearing of the second interlocutory application, being that

an inference has to be a reasonable inference, but the only inference that can be taken to date, in our respectful submission, is that Ms Scott has access to this email address.

110    Context is missing from this submission. The actual submission made by Ms Roberts’ solicitor was as follows (emphasis added to identify the asserted concession):

If I can make one other further submission, your Honour, and that is this: critically – and, your Honour, we, once [again] agree with your Honour’s position on this – when you are not dealing with direct evidence and you’re dealing with circumstantial evidence and a request is of the court to draw an inference, as per Subramaniam, that there cannot be speculation; it can only be a reasonable inference. It’s our respectful submission that what is being asked in all of the exchanges, putting aside, we say, our client has met and answered all the exchanges to date, is that an inference has to be a reasonable inference, but the only inference that can be taken to date, in our respectful submission, is that Ms Scott has access to this email address.

There is not any evidence and there’s no inference that can be drawn that our client has given permission or she has allowed, in any way, shape or form, Ms Scott to do that. Now, that is an inference that may be open to your Honour, but that is a two-stage process. You can’t merge the two. You can’t come along and say, “There is an inference that Ms Scott has access to the email account of X, therefore, it is also an inference drawn that Ms Roberts-Smith gave her access.” And the important point about that – there was an interchange between my learned friend and your Honour about – and we agree with your Honour – currently, on the applicant’s own – on the case, there was a discussion about there’s three known persons who have had access and knew the passwords to this account, that being the applicant, that being the applicant’s long-term friend and accountant and that being the first respondent. Well, I also turn, your Honour, to – that’s not actually correct. There’s a fourth person. And that fourth person is the person by the name of Monica Allen, who, we understand is a solicitor for the applicant’s legal representatives.

111    Ms Roberts’ supposed concession is not a concession at all when regard is had to context. The most that Ms Roberts’ solicitor can be taken to be saying is that the furthest the inference drawing exercise is capable of being taken is that Ms Scott had access to the RS Group email account (first inference), not the additional step that any such access was provided by Ms Roberts (second inference). I do not read this as any concession that the first inference should be drawn, but rather that it is legally capable of being drawn, and that this does not lead to the second inference being legally able to be drawn. It does not amount to any concession that even the first inference should be drawn, and is an emphatic submission that the second inference cannot be drawn. It should further be noted that by this stage Ms Roberts was no longer an active participant and was therefore not given any opportunity to address this supposed concession.

112    I will now review the evidence relied on in support of the third interlocutory application, and asked by Mr Roberts-Smith also to apply to the second interlocutory application. By a fourth affidavit dated 25 August 2021, filed at the same time as the third interlocutory application, Mr Roberts-Smith produces materials produced on subpoena, being:

(a)    account access logs for the RS Group email account between 20 January 2020 and 24 May 2021, deposing to him only accessing that account around 20 April 2021, and only giving access to that account to Ms Allen on about 2 May 2021, referred to earlier in these reasons; and

(b)    Telstra records for certain of the IP addresses recorded in the abovementioned logs.

113    Submissions for the applicant were also filed alongside the third interlocutory application on 25 August 2021. The submissions assert that there is a real doubt as to the truthfulness of Ms Roberts’ sworn affidavit evidence, which is said to be that:

(a)    she has “never provided Ms Scott with access to [Mr Roberts-Smith]’s RS Group account”, by [8] of her second affidavit dated 9 July 2021 – this is an accurate reproduction of that evidence, being evidence that was not impugned by the chat message evidence considered above;

(b)    she has “never provided any person with access to [Mr Roberts-Smith]’s RS Group email account”, by [27] of her second affidavit dated 9 July 2021 and [23] of her third affidavit dated 19 August 2021 – this too is an accurate reproduction of that evidence, again being evidence that was not impugned by the chat message evidence considered above;

(c)    she has “never disclosed the contents of [Mr Roberts-Smith]’s RS Group email account to any person”, by [28] of her second affidavit dated 9 July 2021 – this is an incomplete representation of Ms Roberts’ affidavit evidence because:

(i)    [28] of her second affidavit was expressly qualified by the words “other than to comply with the [defamation proceedings] subpoena”; and

(ii)    it fails to acknowledge that her third affidavit dated 19 August 2021 detailed how she took a screen shot of the Velocity email confirming Mr Roberts-Smith’s AirPods purchase and sent a copy of that screenshot to Ms Scott, thereby and to that extent qualifying her earlier evidence, albeit not expressly addressing that inconsistency.

114    Mr Roberts-Smith’s fourth affidavit dated 25 August 2021 details the information in the subpoenaed records, purporting to interpret them without any indication of the basis that he has to do so other than being someone who has looked at them and endeavoured to make sense of them. They are not his documents and he does not assert any expertise or other basis upon which to give meaning to them, or to advance the meaning to be derived from the face of the documents, speaking for themselves in the conventional way in the absence of any special relationship to them or proven expertise. As addressed below, that evidentiary approach is of concern.

115    Mr Roberts-Smith relies upon his understanding of those records without explaining how he reached that understanding as follows, and also deposes to related matters:

(a)    the Telstra records indicate that a number of IP addresses are associated, via usernames in the form of email addresses, with Ms Scott and a man Mr Roberts-Smith understands is her husband, Mr Darren Pill, who reside at an address in the Cairns region, Queensland;

(b)    the username (email address) associated with Mr Pill was used to access the RS Group email hosting account on at least 101 occasions between 20 January 2020 and 27 April 2021;

(c)    at no time has he ever provided Ms Scott or Mr Pill with authority to access the RS Group email hosting account;

(d)    The Telstra records also indicate that a username in the form of an email address is associated with Mr Bryce Laning and Ms Jessica Simpson, also in the Cairns region but at a different address to Mr Pill, and he does not know anyone by those names;

(e)    the username (email address) associated with Mr Laning and Ms Simpson accessed the RS Group email hosting account on 10 occasions between 15 and 20 February 2020;

(f)    at no time has he ever provided Mr Laning or Ms Simpson with authority to access the RS Group email hosting account;

(g)    he produces a copy of the account access logs (Crazy Domains log) for the RS Group email account which has been colour coded as follows:

(i)    yellow indicates logins to the RS Group Australia email hosting account by an IP address associated with Mr Pill’s username (email address);

(ii)    green indicates logins to the RS Group Australia email hosting account by an IP address associated with Ms Simpson’s username (email address); and

(iii)    blue indicates logins to the RS Group Australia email hosting account by him in Brisbane on 20 April 2021, his solicitor in Sydney on 2 May 2021 and by the third director of RS Group, Mr Veale, in Perth on 6 and 8 May 2021;

(h)    he has undertaken IP address searches on two IP addresses which are identified in the account access logs as having accessed the RS Group email hosting account on 21 January 2020 and 30 January 2020 respectively, but does not explain the process by which he performed that task, making it impossible to be satisfied as to the soundness of the approach taken and the accuracy, reliability and completeness of the information obtained;

(i)    both those IP addresses are registered to Energex Pty Ltd, a company owned by Energy Queensland Ltd;

(j)    Energex and Ergon Energy Network provide electricity throughout regional Queensland as part of Energy Queensland, being information apparently gleaned from Energy Queensland’s Annual Report identifying that Energex and Ergon Energy are 100% owned subsidiaries of Energy Queensland;

(k)    to the best of his knowledge, the source of which is not identified:

(i)    Ms Scott is employed as a relationship manager with Ergon Energy;

(ii)    Ms Scott regularly travels between Cairns and Energex’s headquarters in Brisbane;

(l)    he is concerned that the Telstra records reveal that Ms Scott or Mr Pill have regularly accessed the RS Group Australia email hosting account between 20 January 2020 and 7 May 2021, and any person who can access RS Group Australia email hosting account can also readily access his RS Group email account without the need to enter a password.

116    Before turning to the submissions made by Mr Roberts-Smith arising from the above evidence, it is convenient to make a few preliminary observations. First, the fact that a computer can be shown to have been used at premises at a particular location of itself says nothing about whether an ordinary occupant of those premises was the person using it. It may have been a visitor, or someone else residing at the premises, or even, as Mr Roberts-Smith deposes to in his first affidavit, someone at a different location using a VPN which may have the effect of obscuring where and therefore who the user is. Those matters are the problem of the person relying upon evidence to demonstrate who was, or was likely to be, using such a computer, especially when the evidence is relied upon to make serious allegations, and excluding the ordinary inference that it could have been someone else, or remote access, or both. Second, as considered in more detail below, the universe of people able to access the RS Group email account was not as closed as Mr Roberts-Smith would have the Court accept. In combination, these features strongly suggest a need for considerable caution.

117    The High Court has previously considered whether an IP address can be used as a means of identifying an internet user in Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16; 248 CLR 42. In their judgment, French CJ, Crennan and Kiefel J (as the Chief Justice then was) provided a useful summary of what an IP address actually is, and set out why it cannot be used to specifically identify who an internet user is:

[15]     Computers connected to the internet communicate with each other by means of a common language, or protocol, called the Internet Protocol (IP). Data sent by means of the IP is broken up into small “packets”. Computers sending and receiving data are allocated IP addresses, which enable packets to be exchanged (in much the same way that postal addresses enable mail to be exchanged). Such IP addresses are sold in blocks to ISPs, and ISPs allocate IP addresses to their customers. The identity of the ISP to whom a particular block of IP addresses has been sold is publicly available information.

[16]    Where a customer’s computer is directly connected to the internet (through a modem), the ISP will assign a public IP address to that computer. However, many computers are not directly connected to the internet, but are instead connected to a “router” – a device which can “route” data between a private network of computers. Where a customer’s computer is connected to a router, the router will be directly connected to the internet (through a modem), and the ISP will assign a public IP address to the router. Where multiple computers are connected to a router, all of those computers will be able to access the internet – but only the public IP address assigned to the router will be visible to other computers on the internet. As such, a public IP address does not necessarily correspond to a specific person or computer.

[17]    iiNet allocates “dynamic” IP addresses to all of its non-business customers – this means that the IP address by which an iiNet customer’s computer or router connects to the internet will change over time. Systems instituted by iiNet enable it to identify the customer account to which a particular IP address has been allocated at a particular time, but not necessarily the specific person or computer using that IP address (which may be several).

118    This authority is important to keep in mind when considering how determinative account holder information is in assessing use of an internet account. Mr Roberts-Smith asserts that the Telstra evidence establishes that Ms Scott or her husband Mr Pill accessed the RS Group email hosting account on at least 101 occasions between 20 January 2020 and 7 May 2021, and that the only reasonable inference available is that Ms Roberts gave Ms Scott or her husband unfettered access to his RS Group email account. Aside from it deviating from the High Court’s conclusion reached in Roadshow, this is clearly not the only reasonable inference to draw. Even on the facts Mr Roberts-Smith seeks to establish, there is unexplained access to the RS Group email account by at least two other people, being Ms Simpson and/or Mr Laning (or someone using their IP address), persons in respect of whom there is no evidence to suggest any link to Ms Roberts, Ms Scott or Mr Pill.

119    All of this casts considerable doubt on the overall security of the RS Group email account. Other inferences of equal or greater force include that someone, or even a number of people, other than Ms Scott or Mr Pill were using Mr Pill’s username to access the RS Group email account. This is strengthened by evidence that there were other email addresses and instances of access to that account which were not initially referred to by Mr Roberts-Smith, which I outline below. It follows that this does not afford any proper basis to reject Ms Roberts’ repeated sworn affidavit evidence that she had not given Ms Scott or anyone else access to Mr Roberts-Smith’s RS Group email account, and her credible explanations for circumstances Mr Roberts-Smith asserts suggest otherwise.

120    More generally, the Telstra records relied upon do not establish who was conducting the access. They only establish, at most, that someone using that username had done so. When such a serious step as seeking to compulsorily examine someone, itself a highly unusual process, such inexact proofs to ground even a prima facie assertion will generally not suffice. They especially will not suffice when so many assertions of this kind made in this proceeding have not survived scrutiny. By the time this evidence was introduced very late in the piece, Ms Roberts was no longer actively participating in the proceeding, the hearing of the interlocutory application to examine her having already occurred. Her silence is not to be taken to constitute any admission. Such as it was, she had already expressed that she did not object to being examined. This was not the first time that new evidence had been introduced by Mr Roberts-Smith after the point at which Ms Roberts could have answered it, causing her to have to offer further explanations which were invariably not accepted by him.

121    A second assertion made by Mr Roberts-Smith turns on the account given by Ms Roberts in her third affidavit dated 19 August 2021, described in considerable detail above, of accessing his RS Group email account on 5 April 2020. Mr Roberts-Smith points to Telstra records which he says disclose that the only person who logged on to the RS Group email account that day was Ms Scott or Mr Pill, relying upon purported details of the owners of the IP addresses which accessed the RS Group account in support of this.

122    Despite a perhaps inadvertent reference to the abovementioned colour-coded Crazy Domains log (at footnote 12 of his submissions), it seems likely that Mr Roberts-Smith intended to rely instead or in addition on Telstra records at annexure BRS-18 to his fourth affidavit in support of this submission. It is necessary then to turn to the Telstra records, which also offer little clarity, and give rise to further questions and doubts. The relevant terms of the subpoena to Telstra were:

The documents and things you must produce are as follows:

1.    Documents indicating the names and addresses of account holders of the following IP addresses between 1 January 2020 and 30 June 2021.

[several IP addresses were listed]

2.    The IP address of any Telstra account registered at the following addresses between 1 January 2020 and 30 June 2021:

a.    [three addresses were listed: Ms Roberts’ current address, the address of the former matrimonial home, and the address that Mr Roberts-Smith deposes in his fourth affidavit to being Ms Scott’s and Mr Pill’s address in Cairns]

123    Telstra responded to the subpoena in the form of a letter with 13 annexures. The pro forma phrase in the letter used to describe the instances of access upon which Mr Roberts-Smith relies are exemplified by the sentence at paragraph 3(a) of annexure BRS-18 to his fourth affidavit (emphasis in original):

A query performed on IP address [number redacted] on 20/10/2020 at 16:30 AEST produced records identifying the username [Mr Pill’s email address]. The result is attached as Annexure A.

Detailed technical documents were then annexed to the letter in support of each ownership query, at annexures A – M.

124    Instead of any record produced comprehensively showing the information which Mr Roberts-Smith asserts as fact, it appears that he has instead attempted to extrapolate from the Telstra IP address account holder records, and impose onto the Crazy Domains records, that the only reasonable person who could have accessed the RS Group account on each date was the account holder of the IP address that accessed the RS Group email administration account.

125    A simpler and more rational explanation is that the access on that day was the access that Ms Roberts deposes to being carried out by her, logging on using the IP address associated with Mr Pill’s username. Ms Roberts might have been at the premises where that IP address is registered (being Mr Pill and Ms Scott’s residence), or she might have been using a VPN of the kind Mr Roberts-Smith himself deposes to her (and Ms Scott) using to access the account. In any event, I am not satisfied that the Telstra records establish that the only reasonable inference is that Ms Scott or Mr Pill accessed the account on 5 April 2020

126    The information provided by Telstra does not appear to confirm that the records produced exclude any other access, nor has anyone from Telstra been contacted to ascertain whether or not this is so. It is not clear from the evidence that Telstra is able to provide information for other than its own customers. I am also not prepared to act upon Mr Roberts-Smith’s interpretation of records for which he has no stated, let alone proven, expertise.

127    My concern about the approach taken to this evidence is heightened by some possible errors that Mr Roberts-Smith made in interpreting those records, such as referring to three episodes of access on 5 April 2020, when on their face they may be recording one episode on 4 April 2020 and two episodes on 5 April 2020. The point is not that my possible alternative interpretation is correct, and Mr Roberts-Smith’s interpretation is incorrect, but rather that the meaning of the records is not altogether clear, casting doubt on the soundness of the evidentiary basis for the factual conclusions sought to be established by that evidence.

128    Another possible error is that Mr Roberts-Smith has marked several occasions of access on 16 December 2020 as being occasions where a user of the IP address associated with Mr Pill accessed the account, and therefore part of the 101 occasions of access it was submitted showed that “the only reasonable inference” was that Ms Roberts had given Ms Scott or Mr Pill access to Mr Roberts-Smith’s email address. This is the date that Mr Roberts-Smith deposes to Ms Roberts having paid for renewal of the Crazy Domains account, with an invoice tendered in support of this fact. The access location on these dates is shown as Townsville and the IP addresses are addresses associated with Mr Pill. Some of these entries on this date, unlike most of the other entries, do in fact include information text such as “Group email – renewed”, “Credit card, [credit card number ending in the same four digits as deposed to by Mr Roberts-Smith] added” and “Payment made for invoice #44900025”. It is clear that the access on this day was the access to renew the account, paid for by Ms Roberts. In the absence of any other concrete evidence about the identity of the person accessing the account on this date, this therefore leads me to be concerned that it is at least possible either that this highlighting was made in error, and that Mr Roberts-Smith did not mean to identify these entries as having been accessed by another person; or, that there is a real chance that several of the other yellow highlighted instances identified (if not all of them) may entail Ms Roberts accessing the RS Group email administration account for her own purposes, and in this case, a purpose expressly authorised by Mr Roberts-Smith. The concern again is the accuracy and reliability of the interpretation that Mr Roberts-Smith has provided for records that are not his, and for which he has no identified expertise.

129    I am necessarily concerned at the real possibility of other errors in the interpretation Mr Roberts-Smith has provided, and the use of that interpretation to impeach Ms Roberts’ direct evidence, supported by objective records, as considered repeatedly above.

130    The Crazy Domain log is also a source of concern. It contains a number of unexplained episodes of access to the RS Group administrative account. According to the colour-coding provided by Mr Roberts-Smith, there are 26 instances of access to the account between 20 January 2020 and 24 May 2021 from IP addresses which are not attributed to any of the persons Mr Roberts-Smith seeks to say accessed the account, or which he attributes to himself, Mr Veale or his solicitor. These access locations include multiple suburbs in Brisbane, the city of Toowoomba, and Singapore. It appears from BRS-18 that Mr Roberts-Smith attempted to conduct searches on several IP addresses detailed in these entries, but that Telstra was unable to perform a query on them, as they are non-Telstra addresses. There has been no explanation for why Mr Roberts-Smith did not make other searches on these addresses, especially given the level of concern he apparently holds that others may have been accessing the RS Group account. Mr Roberts-Smith even went to the extent of searching for the IP address for the workplace of Ms Scott, at multiple locations, in an apparent attempt to narrow these access instances down further. This still leaves 24 unidentified instances of access, which may or may not have been by Ms Roberts; there is simply no means of safely knowing or even inferring that.

131    Even if I was to accept Mr Roberts-Smith’s interpretation that the Telstra and Crazy Domains records demonstrated to an acceptable degree who had accessed his account at what time, I could not exclude the fact that there were up to 26 occasions where others might have accessed the RS Group email account and accessed or otherwise used the information in the manner alleged by him. Indeed, there are already two persons identified via the IP address method who have apparently had access to the RS Group account who have no proven relationship to this matter, let alone to Ms Roberts, being Mr Laning and Ms Simpson identified in Annexure M to BRS-18. This demonstrates that there is an unacceptably high chance that someone else other than Ms Roberts or the proposed additional respondents could have accessed Mr Roberts-Smith’s email account. This is too significant a margin for error to allow me to infer anything concrete from this evidence, let alone to order that any examination should occur based on it.

132    A third assertion made by Mr Roberts-Smith is that Ms Roberts’ innocent explanation for her WhatsApp messages with Ms Scott on 5 April 2020 and 16 December 2020 cannot be accepted because the Telstra records are asserted to show that Ms Scott (or her husband) logged on to the RS Group email hosting account on each of those two dates. That does not overcome, or even seemingly address, the logic of the explanation that Ms Roberts gave. As to the text conversation on 5 April 2020, the reference by Ms Scott to “I would need to check” was, read fairly and logically, clearly a reference to Ms Roberts’ question a short time earlier about Mr Roberts-Smith or Mr Veale monitoring her RS Group emails, and more readily supports an inference of a technical answer to the question posed by Ms Roberts, rather than an answer derived by having access to any of the RS Group email accounts.

133    As to the text conversation on 16 December 2020, Ms Scott’s reference to “Ok I will try to log on to your account”, after Ms Roberts sent her a copy of her driver licence and a copy of her passport, made is easy to accept Ms Roberts’ evidence that this was a reference to setting up a myGov account. There is no attempt by Mr Roberts-Smith to address the substance of that most credible explanation. Even if it had been a reference to accessing Ms Roberts’ account, this is not a circumstance that demonstrates that Ms Roberts gave Ms Scott access to Mr Roberts-Smith’s account.

134    A fourth assertion made by Mr Roberts-Smith is that Ms Roberts’ evidence in her third affidavit dated 19 August 2021 about accessing his email account on 5 April 2020 and taking a screenshot of the Velocity email contradicts her prior evidence that she had not provided anyone with “access to data” from his RS Group email account and that she has never disclosed the contents of that email account to anyone else. He complains that no explanation is given for why Ms Roberts did not disclose this in her first affidavit dated 10 June 2021. The applicant also relies upon Ms Roberts’ earlier deposed statements that she had “never disclosed the contents of [Mr Roberts-Smith]’s RS Group email account to any person” in her second affidavit of 9 July 2021 as being contradictory and a sufficient basis to determine that Ms Roberts is not being truthful in any of her testimony. This is the strongest argument made by Mr Roberts-Smith as to why the examination is justified.

135    It is true that this was apparently an omission on Ms Roberts’ part and I must weigh this against her. However, these assertions by Mr Roberts-Smith do not account for the extent of Ms Roberts’ evidence explaining the circumstances in which she did come to use and share that information, which was a detailed and inherently credible description of taking the screen shot, including the events leading up to that taking place. It is notable in this regard that Ms Roberts, when asked, made no attempt to deny what had occurred, but instead offered a detailed explanation of what did occur and rectified her evidence. That is creditable conduct which I must also weigh up with the regrettable omission in the first place.

136    Given that Ms Roberts has overall provided full and frank responses to multiple assertions by Mr Roberts-Smith; that she has been able to provide evidentiary proof to support her explanations for what has occurred in every circumstance; and, that where evidence has emerged contradicting her previous statements, she has also been able to explain and correct those statements with evidence, I cannot conclude that this single omission proves that she has been untruthful either purposefully or recklessly in complying with the 1 June 2021 orders and that she must therefore be examined.

137    Finally, in his affidavit sworn 10 June 2021, Mr Roberts-Smith only referred to there being three email addresses associated with the RS Group account server. Annexure BRS-16 to his fourth affidavit shows at least six email addresses associated with the account server. It is the evidence of Mr Roberts-Smith that:

The RS Group Australia email hosting account enables each of the three directors to perform functions as account administrators such as opening and closing individual RS Group Australia email accounts. It also enables an administrator to access any individual RS Group Australia email account and read the emails sent to and from that account without the need to input the password for the individual RS Group Australia email account.

138    Assuming each of the account holders also had access to the hosting account, the existence of these other accounts therefore materially increases the chance – almost doubles it – that any one of the times of access to the RS Group email administration account might have been to access an email address that was not Mr Roberts-Smith’s email address. This includes where Ms Roberts might have been accessing or using her own RS Group account for her own purposes, as there is evidence that she did, including by using a VPN (also deposed to by Mr Roberts-Smith) and therefore via a different IP address than from her residence. I cannot accept evidence with this margin for error as sufficient to compel an examination.

139    I make one further note, relevant to both the second and third interlocutory applications. The terms of both applications relate to access specifically to the email account of Mr Roberts-Smith. They do not relate to general access to the RS Group email administration account. They do not relate to access to any of the five other accounts associated with that domain. All of the evidence relied upon by Mr Roberts-Smith in support of these applications records instances of general access to the RS Group email administration account, with no clear evidence that it was his email account which was accessed.

140    The terms of these interlocutory applications do not extend to any access to the RS Group email administration account. Rather, they relate to access to Mr Roberts-Smith’s account only. Through Mr Roberts-Smith’s affidavits, and the submissions made both in writing and orally, the boundaries of these applications have been muddied to extend to any access to the RS Group email administration account. There has been a conflation that any access to the RS Group email administration account equals access to Mr Roberts-Smith’s personal account. It is true that access to the administration account would allow access to Mr Roberts-Smith personal account, but the two do not inherently travel together. There has never been any evidence presented to me by Mr Roberts-Smith why it must have invariably been his personal account which was accessed following any RS Group email administration account access. His case in that regard rises no higher than mere suspicion caused by the issuing of the subpoena in the defamation matters. This is yet another reason why I put limited weight on the assertions relating to the access of the RS Group email administration account.

141    I do not accept each individual assertion set out above. Nor do I accept the combined effect of any of them. Contrary to the conclusion to Mr Roberts-Smith’s 25 August 2021 submissions that this litany of complaints reveals a real basis to be concerned that Ms Roberts has concealed the true position, I have no proper basis for such a concern. It does not, as asserted, cast the asserted dark shadow over all of Ms Roberts’ evidence such that Mr Roberts-Smith should be permitted to examine her to get at the alleged truth.

142    No sufficient basis has been established for the examination of Ms Roberts on the limited question of compliance with the Court’s ex parte orders, let alone for the broader examination foreshadowed. The interlocutory application dated 18 June 2021 brought against Ms Roberts must therefore fail.

The third interlocutory application for joinder

143    The application for the joinder of Ms Scott, and her husband, Mr Pill, under r 9.05 of the Federal Court Rules was the subject of a brief hearing, relying on the evidence detailed above, with the question of applications for further orders to be heard and determined only if that application was to succeed. It was argued that there was utility in the joinder being ordered because, if Ms Roberts was examined, any evidence that the two additional proposed respondents put on may be relevant. A possible application for a computer expert to examine Ms Roberts’ computer was also foreshadowed.

144    The substance of the application was that Ms Scott and Mr Pill should be joined as parties to enable determination of a related dispute, and thereby avoid multiplicity of proceedings, or alternatively to ensure that each issue in dispute is able to be heard and finally determined: see r 9.05(1)(b)(ii) and (iii). From the discussion above, it is apparent that the putative related dispute is that Ms Scott and/or Mr Pill, instead of or as well as Ms Roberts, or on behalf of Ms Roberts, accessed Mr Roberts-Smith’s confidential information and then either misused it or facilitated its misuse. The burden of the authority relied upon is that Mr Roberts-Smith must show at least an arguable case that each of them had engaged in such conduct: see Comcare v John Holland Rail Pty Ltd [2009] FCA 660; 109 ALD 508 at [13]; Brisbane Slipways Operations Pty Ltd v Pantaloni [2010] FCA 654; 270 ALR 13 at [153]; and Mandhan v Toyota Finance Australia Ltd (No 2) [2020] FCA 3 at [5] (citing Review Australia Pty Ltd v Redberry Enterprise Pty Ltd [2003] FCA 1009; 58 IPR 366 at [5]). Comcare at [13] suggests that even an arguable case may not suffice.

145    The argument advanced is that while there had not been a sufficient basis to join Ms Scott at the time the proceeding was commenced against Ms Roberts, there was now a sufficient basis in light of the login records and Telstra records (considered in some detail above). The thrust of the argument is that it can readily be inferred that Ms Roberts must have provided access details to Ms Scott and/or Mr Pill for the purpose of accessing Mr Roberts-Smith’s account, and that Ms Roberts’ affidavit evidence that she had not provided anyone, let alone them, with access to Mr Roberts-Smith’s email account, should not be accepted.

146    I have made it clear that I do not accept that any sufficient basis has been demonstrated not to take Ms Roberts at her word on this topic. With that conclusion, the basis for the joinder application falls away. It is no answer to that conclusion that, as Mr Roberts-Smith submits, he has a sufficient basis for commencing separate proceedings against Ms Scott and/or Mr Pill, and that the overarching purpose of civil proceedings in this Court, as set out in s 37M(1) of the Federal Court of Australia Act would best be advanced by joinder. The rejoinder to that is that if such proceedings were commenced there may be live questions as to the propriety of that taking place.

147    I am not satisfied that any such arguable case has been established. In my view, the material relied upon 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 threads of material relied upon in relation to Mr Pill do not even rise to the level of a bare prima facie case. No sufficient basis has been made out for any joinder to take place.

Conclusion

148    For the reasons given above, both Mr Roberts-Smith’s interlocutory application for the examination of Ms Roberts, and his interlocutory application to join Ms Scott and her husband must be dismissed. Mr Roberts-Smith must pay Ms Roberts’ costs of and associated with the interlocutory applications brought against her, being the first and second interlocutory applications.

Associate:

Dated:    21 January 2022