Victoria Cross recipient Ben Roberts-Smith is trying to stop “deeply personal” information being revealed in his defamation lawsuit over claims he committed war crimes and domestic violence.
In a brief case management hearing in the federal court on Monday, Roberts-Smith’s barrister, Bruce McClintock SC, applied for the redaction of certain material in documents provided to the publishers to be approved by the court.
Part of the material not redacted said he asked his wife, Emma, to lie and say they were separated at the time of his “affair” with another woman, the federal court was told on Monday.
Roberts-Smith is suing the publishers of the Age, the Sydney Morning Herald and the Canberra Times over articles about his time serving with the special forces in Afghanistan and his personal life.
Roberts-Smith said the articles contained false allegations about potential war crimes between 2009 and 2012.
He also contends they falsely suggested he punched a woman, with whom he was said to be having an affair, in Canberra in 2018.
McClintock said the “deeply personal” redacted material was completely irrelevant to the defamation case.
Lyndelle Barnett, for the publishers, said they would have some concern about whether it would be appropriate for Justice Anthony Besanko to see the material to rule on it, noting he would be hearing the trial next year.
Acknowledging the “sensitivities” of the material, she suggested an order could be made allowing the defendants’ legal team to have access to the redacted material and, if truly irrelevant, the information “would not see the light of day”.
Roberts-Smith and his wife have previously said that his relationship with another woman was not an affair as the couple was separated at the time.
But Barnett said that in the material not redacted, Roberts-Smith described the relationship as “an affair” and that his wife had been told by her husband to lie about it.
This would be highly relevant to Roberts-Smith’s credibility and that of his wife, if she was called to give evidence, the lawyer said.
McClintock opposed any order allowing the “lawyers to hostile parties” to see the material.
“No one would wish other people to see” the highly personal material, he stressed again.
The parties will provide the judge with submissions before he considers the redaction application.