FEDERAL COURT OF AUSTRALIA
Roberts-Smith v Roberts [2022] FCA 18
File number: NSD 511 of 2021 Judgment of: BROMWICH J Date of judgment: 21 January 2022 Catchwords: PRACTICE AND PROCEDURE – ex parte interlocutory application as part of an originating application filed by applicant, seeking production of documents and affidavit from first respondent in relation to alleged misuse of confidential material from his email account – where documents were produced and an affidavit provided by first respondent in response to ex parte orders – second interlocutory application filed by applicant seeking examination of first respondent as to compliance with orders made as a result of the first interlocutory application – third interlocutory application filed by Mr Roberts-Smith seeking to join and grant injunctive relief against third and fourth proposed respondents – where further applications made on basis of applicant’s dissatisfaction with responses by first respondent – where no sufficient evidence to support any inference that first respondent had not complied with the terms of ex parte orders and required examination – where no sufficient evidence to support joinder of proposed third and fourth respondents – second and third interlocutory applications dismissed with costs Legislation: Family Law Act 1975 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 1979 (Cth)
Cases cited: Brisbane Slipways Operations Pty Ltd v Pantaloni [2010] FCA 654; 270 ALR 13
Comcare v John Holland Rail Pty Ltd [2009] FCA 660; 109 ALD 508
Griffiths v Ricketts (1849) 7 Hare 299; 68 ER 122
Mandhan v Toyota Finance Australia Ltd (No 2) [2020] FCA 3
Review Australia Pty Ltd v Redberry Enterprise Pty Ltd [2003] FCA 1009; 58 IPR 366
Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16; 248 CLR 42
Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 148 Date of last submissions: 17 September 2021 Date of hearing: 13 August, 17 September 2021 Counsel for the Applicant: A Moses SC, P Sharp Solicitor for the Applicant: Mark O’Brien Legal Counsel for the First Respondent: J Murakami of Behlau Murakami Grant LLP Solicitor for the First Respondent: Behlau Murakami Grant LLP ORDERS
NSD 511 of 2021 BETWEEN: BEN ROBERTS-SMITH
Applicant
AND: EMMA ROBERTS
First Respondent
RS GROUP AUSTRALIA PTY LTD
Second Respondent
ORDER MADE BY:
BROMWICH J
DATE OF ORDER:
21 JANUARY 2022
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:
By an originating application, the applicant, Mr Ben Roberts-Smith, claims interlocutory and final injunctive…
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- Roberts-Smith v Roberts [2022] FCA 18
- Case
- [2022] FCA 18
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CaseChat Overview and Summary
Roberts-Smith v Roberts involves an application by Ben Roberts-Smith seeking various interlocutory orders related to the alleged misuse of confidential material from his email account. The application was before the Federal Court of Australia. Roberts-Smith sought an examination of the first respondent, Emma Roberts, to determine compliance with ex parte orders, and also sought to join third and fourth respondents, Ms Scott and Mr Pill, in relation to the alleged misuse of his confidential material.
The court considered the legal issues of whether Roberts-Smith had established a sufficient case for examination of Roberts and for the joinder of the Scott and Pill respondents. The court found that Roberts-Smith had not established a sufficient case for examination, as there was no evidence that Roberts had not complied with the terms of the ex parte orders. The court also found that there was no sufficient evidence to support the joinder of the Scott and Pill respondents, as the material relied upon went no further than bare possibilities and suspicions.
The court dismissed Roberts-Smith's interlocutory applications for examination of Roberts and for the joinder of the Scott and Pill respondents, and ordered Roberts-Smith to pay Roberts' costs of the interlocutory applications. The proceeding was listed for case management on 28 January 2022 or such other date as may be fixed.
The court considered the legal issues of whether Roberts-Smith had established a sufficient case for examination of Roberts and for the joinder of the Scott and Pill respondents. The court found that Roberts-Smith had not established a sufficient case for examination, as there was no evidence that Roberts had not complied with the terms of the ex parte orders. The court also found that there was no sufficient evidence to support the joinder of the Scott and Pill respondents, as the material relied upon went no further than bare possibilities and suspicions.
The court dismissed Roberts-Smith's interlocutory applications for examination of Roberts and for the joinder of the Scott and Pill respondents, and ordered Roberts-Smith to pay Roberts' costs of the interlocutory applications. The proceeding was listed for case management on 28 January 2022 or such other date as may be fixed.
Orders
Orders of the court
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.
Background
Background to the litigation
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 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. 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 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. 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. 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.
Evidence
Evidence Before The Court
I now turn to the reasons for these findings. The evidence and submissions in the second interlocutory application 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. 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.
Decision
Reasons for decision
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 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.
Ratio Decidendi
Legal Principle Established
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