Ben Roberts-Smith has appealed after a judge stopped him grilling his ex wife about whether she leaked his emails to her friends, and potentially his critics in the media.
The highly decorated former SAS soldier is suing Nine over a series of articles which he says falsely portray him as a war criminal.
But Mr Roberts-Smith launched another lawsuit, at the beginning of his trial, against his ex wife Emma Roberts.
He claimed Ms Roberts had access to an email connected with his public speaking company, RS Group, and suspected either she or her best friend Danielle Scott had leaked its contents.
Mr Roberts-Smith wanted his lawyers to question his wife, in a courtroom, about her access to the account and whether she had leaked the emails.
The SAS veteran also wanted his lawyers to question Ms Scott and her husband over the same accusations after their IP address was allegedly recorded accessing the account.
But Justice Robert Bromwich, on January 21, ruled against Mr Roberts-Smith and accepted Ms Roberts‘ explanations that the emails were only accessed for legitimate purposes.
“(The case) 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 judge said.
But Mr Roberts-Smith, on Wednesday, filedxjmtzyw an appeal against that decision seeking to have it overturned.
The appeal documents, seen by NCA Newswire, claim Justice Bromwich erred by not doubting Ms Roberts.
The judge should have seen, according to Mr Roberts-Smith‘s lawyers, that Ms Roberts “omitted” that she had disclosed confidential information to Ms Scott on two occasions.
Further, the appeal states, Mr Roberts-Smith email account was “frequently accessed from several IP addresses to which Scott and her husband Darren Pill had access”.
Mr Roberts-Smith also claims multiple emails were “flagged” including a legally sensitive email but not by the SAS veteran.
That should have showed the account was accessed by a third party, the appeal states.
Mr Roberts-Smith, in the court document, claims Ms Roberts forwarded a screenshot of a confidential email to Ms Scott.
Among the eight grounds of appeal is Mr Roberts-Smith‘s claim that the judge was “unreasonable” by refusing to rope Ms Scott and Mr Pill into the lawsuit.
“If leave is not granted, substantial injustice will be caused to (Mr Roberts-Smith),” the document says.
Mr Roberts-Smith‘s lawyers also want Ms Roberts to pay his legal bill.
