Ben Roberts-Smith wins access to private emails in defamation case

War veteran Ben Roberts-Smith has won access to a series of messages between lawyers defending three newspapers accused of defamation and a solicitor representing a former soldier who has agreed to testify against the Victoria Cross recipient.

The ex-soldier, known as “Person 56”, was a member of Mr Roberts-Smith’s patrol in 2012 and participated in missions in Darwan and Fasil. In allegations published in 2018, Mr Roberts-Smith was accused of being involved in the death of handcuffed farmer Ali Jan during the Darwan mission.

Ben Roberts-Smith is suing The Age and The Sydney Morning Herald over the reports.Credit:Edwina Pickles

In a decision handed down on Tuesday, Federal Court justice Wendy Abraham ruled that the contents of four emails sent by the papers’ lawyers, and information contained within another communication with a lawyer for the Department of Defence, were not protected by privilege and must be handed over.

Mr Roberts-Smith is suing The Age, the Herald and The Canberra Times over a series of stories starting in June 2018 that he alleges accused him of war crimes and an act of domestic violence against a woman with whom he was having an extramarital affair. He denies all wrongdoing.

Of the communications, three of the emails contained information that lawyers acting for the newspapers had argued were developed for the purposes of obtaining legal advice and therefore privileged.

Another one of the emails, written by Minter Ellison lawyer Dean Levitan to solicitor Sam Richter, who is representing Person 56, discussed the circumstances under which the former soldier could give evidence in court against Mr Roberts-Smith.

Additionally, the contents of a private conversation between lawyers representing the papers and Mr Richter, which was conveyed by Mr Richter to Department of Defence lawyer Anthony Reilly, must also be handed over.

Client legal privilege is a legal right which entitles individuals and organisations to obtain legal advice about their circumstances and keep it confidential.

Mr Robert-Smith’s barrister Arthur Moses, SC, argued that the papers’ lawyers had implicitly waived privilege and Mr Roberts-Smith’s legal team was therefore entitled to the documents.

The news outlets are relying on a defence of truth to defend their claims, and have applied to the Federal Court to call Person 56 as a witness when the trial resumes next year.

A picture of the village of Darwan, where Afghan witnesses have given evidence about the actions of Ben Roberts-Smith.

The court had previously found that a report prepared by investigative journalist Ross Coulthart, a former reporter for Channel Seven, which summarised allegations and rumours about Mr Roberts-Smith would remain secret, after it found it could not be used because it was covered by legal privilege.

Federal Court Justice Anthony Besanko said the trial would resume in Sydney in February next year after a six-month pause owing to coronavirus restrictions.

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