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While he did not name the woman,media reports have previously suggested Mr Roberts-Smith and his solicitor,Monica Allen,spent time together socially. Ms Allen is also part of the team of lawyers acting for him in the defamation proceedings.
Justice Bromwich said that if a “material disclosure” had not been made it “has the potential to unravel the entirety of the orders I made on 1 June”.
He said he was “not taking those media reports as being accurate or inaccurate” and “it may all be false” but “I thought I had to raise it”.
“I’m trying not to put the deponent of the affidavit in an awkward position. It’s an embarrassing potential situation;it may be false. I have to deal with the reality that I have become aware of information that may or may not be correct,” he said.
The orders against Mr Roberts-Smith’s former wife were made on the basis of the affidavit,in which the solicitor made certain statements based on their information and belief.
But Justice Bromwich said there was a “world of difference” between a solicitor at arm’s length deposing to certain matters and a solicitor in a relationship with Mr Roberts-Smith doing so.
Mr Moses said Mr Roberts-Smith’s team would provide “other affidavit material”,expected to be an affidavit from Mr Roberts-Smith himself,to provide a basis for the orders.
He submitted the orders should not be discharged. He took aim at “rumour and innuendo” and said it was unusual for a judge to take media reporting into account.
“Female lawyers have enough to deal with in this profession without these aspersions being put against them,” he said.
Later on Wednesday,Mr Moses returned to court and told Justice Bromwich:“The applicant and the deponent are not in a relationship,full stop.”
He took aim at Nine,the publisher of theHerald andThe Australian Financial Review,for publishing items this week referring to Mr Roberts-Smith and Ms Allen,after the defamation case started on Monday.
He raised questions about whether the articles had a tendency to intimidate or threaten lawyers in the defamation proceedings,a “very serious issue” that might constitute contempt of court on Nine’s part.
He raised concerns about the “potential harassment and belittling of a female practitioner”.
A Nine spokesperson said:“Nine denies that any articles published by us could have intimidated or threatened lawyers in the proceedings or could have constituted contempt of court.”
Mr Roberts-Smithstood down from his role as general manager of media company 7Queensland and Seven Brisbane in April to focus on the defamation trial. He joined Seven in 2014.
Seven West Media commercial director Bruce McWilliam said outside court on Wednesday that Ms Allen “can’t comment but it will be answered in court and it’s a deplorable slur”.
“There is absolutely no truth attached to any of it and its a very bad way to treat a very talented solicitor who is very good at what she does,” Mr McWilliam said. “It’s going to be confirmed in court[on Wednesday afternoon] that there was no relationship.”
Separately,Justice Bromwich advised the parties on Wednesday that he knew former judge Len Roberts-Smith,QC,who was head of the Defence Abuse Response Taskforce and is Mr Roberts-Smith’s father.
But he said “I see no reason why I should disqualify myself from this proceeding”.
Mr Moses indicated that he would seek instructions about whether Mr Roberts-Smith’s legal team would make an application for Justice Bromwich to recuse himself from the proceedings on this basis.
Mr Roberts-Smithlaunched the defamation lawsuit in 2018 over reports in The Ageand theHerald that he says accused him of murder during his 2009 to 2012 tour of Afghanistan and committing an act of domestic violence against a woman with whom he was having an extramarital affair.
Along with the two media outlets now owned by Nine,he is suing three journalists andThe Canberra Times,which is now under separate ownership.
He denies all wrongdoing. The media outlets are seeking to rely chiefly on a defence of truth.
Mr Roberts-Smith was expected to appear on the witness box on Wednesday in the defamation proceedings but the hearing was adjourned until Thursday to allow the parties to deal with preliminary issues.