‘Books will be written’: Judgment day in Lehrmann defamation case

After millions of dollars in legal costs, dozens of witnesses and a high-profile trial streamed live on YouTube, a Federal Court judge is set to hand down his decision in Bruce Lehrmann’s defamation fight with Network Ten and Lisa Wilkinson – but there may be no real winners.

Justice Michael Lee will deliver his decision in Sydney at 10.15am on Monday after a four-week trial last year and a surprise re-opening of the case this year. It will be broadcast live and Lee is expected to read extracts of his reasons in court before publishing the full written judgment.

The trial took a detour this month after Ten won a bombshell application to call fresh evidence from a former Seven producer, Taylor Auerbach, about that network’s dealings with Lehrmann before the former federal Liberal staffer signed an exclusive interview deal with its Spotlight program.

Leading media lawyer and Minter Ellison partner Peter Bartlett, who acted for The Age and The Sydney Morning Herald in the Ben Roberts-Smith litigation, said that “books will be written” about the Lehrmann litigation, just as they were in the war veteran’s case.

“Many reputations have been tarnished,” Bartlett said.

“I feel for Justice Lee. He has to review seriously conflicting evidence. Evidence that sometimes conflicts with prior accounts given. Evidence that has been seriously challenged.

“The defences of truth and qualified privilege will be tested.”

The lawsuit

Lehrmann launched defamation proceedings last year against Ten and Wilkinson, a former co-host of the broadcaster’s flagship current affairs program, The Project.

Lisa Wilkinson outside the Federal Court in Sydney in February.

He alleges Wilkinson’s interview with Higgins, aired on February 15, 2021, defamed him by suggesting he was guilty of sexually assaulting Higgins in 2019 in the Parliament House office where they worked for then-defence industry minister Linda Reynolds.

Lehrmann was not named in the broadcast, but he alleges he was identifiable to a large number of people in Canberra and elsewhere because of the description given of the alleged perpetrator. If Lee finds he was identified, the media parties are seeking to rely on defences of truth and qualified privilege.

“The judge will be weighing up many possible results,” Bartlett said. “All will further damage reputations and leave various parties seriously out of pocket for big costs. I doubt that there will in reality be any real winners in this case.”

The defences

Under the truth defence, Ten and Wilkinson are seeking to prove to the civil standard – on the balance of probabilities, meaning it is more likely than not – that Lehrmann raped Higgins.

While this is less onerous than the criminal standard of proof beyond reasonable doubt, the so-called Briginshaw principle applies in civil cases involving serious allegations and requires courts to proceed cautiously in making grave findings.

In the event the truth defence fails, Ten and Wilkinson are seeking to rely on a defence of qualified privilege, which protects publications of public interest where a media outlet has acted reasonably. This puts the actions of the broadcaster and Wilkinson in sharp focus.

Brittany Higgins outside the Perth Supreme Court in March.

Ten and Wilkinson have separate legal representation, and it is possible that Lee will make different findings against the network and its former star presenter. Wilkinson remains employed by Ten but has not appeared on air since 2022.

The costs

The trial is estimated to have cost at least $10 million.

Lee has previously said that it appeared that parts of the evidence of both Higgins and Lehrmann “simply can’t be accepted”.

There is a possibility Lee will say that he cannot conclude on the balance of probabilities that Lehrmann raped Higgins, while also making a finding that Lehrmann did not give truthful evidence about what happened on the night in question in March 2019. He may also find the defence of qualified privilege fails because the media parties did not act reasonably in airing the rape claim.

‘I doubt that there will in reality be any real winners in this case.’

Minter Ellison partner Peter Bartlett, a leading media lawyer.

In those circumstances, Ten and Wilkinson have argued that Lehrmann should receive zero or nominal damages. This would result in him winning the case in a technical sense but being on the hook for a substantial portion of his legal costs.

Lehrmann’s ACT Supreme Court criminal trial for sexual assault was aborted in 2022 due to juror misconduct and the charge against him was later dropped altogether owing to concerns about Higgins’ mental health. He has always maintained his innocence.