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.