The Bruce Lehrmann defamation suit

A Federal Court judge is considering whether to allow former Liberal staffer Bruce Lehrmann to sue journalists for defamation over their stories about the alleged rape of Brittany Higgins, in what is expected to be a four-week trial half a year, if it continue

Lehrmann is seeking to sue News Corp and Network Ten, and journalists Samantha Maiden, political editor of news.com.au, and Lisa Wilkinson, a former presenter on The Project.

Lawyers for all parties made their closing arguments Thursday in the preliminary hearing on whether a defamation trial should proceed.

Under New South Wales law, there is a 12-month period for commencing defamation proceedings after an allegedly defamatory publication or broadcast has been made.

Lehrmann is asking for that time limit to be waived and for his application to go to trial more than two years after the allegedly defamatory statements were made.

He contends that he did not sue sooner because the criminal attorney he retained after the rape allegation came to light in 2021 advised him not to pursue defamation, and because he faces criminal prosecution and mental health issues . At the time, he was not publicly named as the man accused of raping Higgins in 2019, but he says people became aware that it was him.

Lawyers for the media companies argue that Lehrmann has not provided any evidence as to why he did not sue within the normal time limit.

Lehrmann testified last week during the preliminary hearing on the defamation claim – the first time he has testified in court since being accused of rape, an allegation he denies.

Lehrmann stood trial for rape in the High Court in the Australian Capital Territory in October last year and pleaded not guilty. There he exercised his right to remain silent and chose not to testify.

After 18 days of testimony, and several days of jury deliberations, that trial was halted when a juror was found to have committed misconduct. It was rescheduled for early 2023, but the ACT Director of Public Prosecutions withdrew the charges, citing medical evidence that it would pose an unacceptable risk to Brittany Higgins’ mental health.

Before Lehrmann gave evidence last week, his barrister, Steve Whybrow, SC, indicated that he intended to call a criminal lawyer, Warwick Korn, as a witness. Lehrmann enlisted Korn to advise him on the night The Project aired his interview with Higgins in February 2021.

Judge Michael Lee criticized Whybrow in court for failing to call Korn, who appeared elsewhere in court as a lawyer, instead relying on second-hand evidence of his testimony.

Korn’s testimony would have centered on what he told Lehrmann that night in his office.

Last week, the court heard a series of text messages Lehrmann sent to his then-girlfriend, purporting to relay what Korn had told him.

In the messages, Lehrmann wrote that Korn told him “defamation is certain” and that he would be “for millions” if he was named. In other messages, he wrote to a friend and encouraged him to join them in the office. He texted someone the same night to say he was having a party and asked if he had “any gear” and added: “need bags”.

Lehrmann denied in court that he was advised to sue for defamation. He insisted some of the messages were fabrications and that others, including the invitation to his friend sent just 13 seconds later, were true.

He said he fabricated the content of some of the messages to his girlfriend.

“I was appeased [her] as she was incredibly upset and upset,” he said. Under cross-examination, he said it was “difficult to remember exactly the nature of the conversations taking place”.

At last week’s hearing, Judge Lee said he was satisfied there was a “bona fide dispute” between what Lehrmann says Korn told him and what Korn says he told him.

“It is reasonable to infer from the circumstances that any reasonable lawyer who was not behaving in a very strange way would not have advised not to initiate defamation proceedings,” Judge Lee said.

Warwick Korn was expected to appear on Thursday to give his version of events, but when Thursday’s trial began, Lehrmann had a new senior counsel, Matthew Richardson, SC, who revealed that Korn would no longer appear.

Lehrmann denied in court that he was advised to sue for defamation. He insisted some of the messages were fabrications and that others, including the invitation to his friend sent just 13 seconds later, were true.

Counsel for the respondents speculated as to why this might be.

“Mr Korn is said to disagree with what was recorded,” Wilkinson’s barrister, Sue Chrysanthou, SC, told Judge Michael Lee regarding Lehrmann’s evidence.

Dr Matthew Collins, KC, acting for Netwerk Ten, said the judge could conclude that Korn’s evidence “would not have helped Lehrmann’s case”.

Collins argued this was because the explanations Lehrmann gave for his libelous text messages were implausible.

“Put yourself in the position of Mr. Lehrmann in Mr. Korn’s office,” Collins said in his closing submission. “He asks Your Honor to accept that he is sitting with a lawyer on this most traumatic day of his life. He gives the lawyer instructions, and he receives advice. At the same time, he has the presence of mind to send messages, which are a mixture of presumably verbatim things that Mr. Korn told him, and then fabrications that he now says Your Honor must reject because he was trying to appease his girlfriend. It’s just inherently incredible.”

The respondents in the defamation suit argue that, regardless of the fact that Lehrmann faced the prospect of criminal charges, he could reasonably have taken steps to indicate that he wanted to sue, within the one-year limit.

In closing submissions on Thursday, his lawyer, Matthew Richardson, argued that initiating defamation proceedings would have exposed him to the risk of prejudice.

“It is possible that the civil proceedings took place before the criminal proceedings,” Richardson told the judge. “It is possible that he should have undergone cross-examination in the civil proceedings before the criminal proceedings had even concluded. It is clear that if civil proceedings had continued, it could have harmed his position.”

Sue Chrysanthou said Lehrmann should have indicated he intended to initiate proceedings and stayed them, pending the resolution of a criminal complaint. Richardson said seeking a stay was not reasonable.

Chrysanthou also said Lehrmann should have sent Lisa Wilkinson a notice of concern and given her an opportunity to respond, instead of skipping that step and going straight to launching proceedings, a year after the deadline has passed.

Samantha Maiden’s lawyer, Renée Enbom, KC, also said during his testimony Lehrmann gave no reason for not suing in time. “And that means there’s a significant gap in the evidence,” Enbom said.

Judge Lee gave reasons for rejecting part of an application by Wilkinson’s lawyer to gain access to a large amount of other information obtained from Bruce Lehrmann’s mobile phone.

Chrysanthou pressed last week for access to the full file of downloaded text messages from Lehrmann’s phone.

At the time, Justice Lee criticized her for casting such a wide net, calling it “a classic fishing expedition”.

“There is a large amount of this material that cannot possibly be relevant to the settlement of this application,” Lee said.

Pushing back, Chrysanthou insisted, “We’re looking for one document.”

“You are looking for one document which is a computer file,” the judge replied.

He refused that bid and only allowed messages that specifically referred to the time period being discussed.

“Do you want reasons?” he asked. After a pause he added, in a slightly withering tone, “I don’t think you’ll want them.”

Chrysanthou decided to be the judge of it. “Your Honor, I think I need brief reasons,” she replied.

Judge Lee gave his reasons on Thursday. He said the initial notice to Lehrmann’s lawyers covered a report on the contents of Lehrmann’s cellphone, which he turned over to police on April 19, 2021, as part of the criminal investigation.

The content of the report was not adduced as evidence during the criminal proceedings.

Judge Lee told the court on Thursday that the report contains the entire contents of Lehrmann’s phone from April 2021, including encrypted messages, texts, video and audio files – some 39,823 pages in total.

He rebuked Chrysanthou about the enormity of the request. “This is not some sort of roving inquiry into everything Mr. Lehrmann thought, did, looked, said or went to during the statute of limitations,” Judge Lee said.

As Thursday’s hearing ended, Justice Lee asked how long the parties thought any trial could take, should he decide to allow the case to proceed.

They indicated it would probably take four weeks. The respondents rely in part on a defense of the truth, which means that a trial could deal directly with what happened on the night that Brittany Higgins says she was in the office of the then Minister of Defense Industry, Linda Reynolds, in March 2019. raped at Parliament House.

Next month, separate from these hearings, an ACT public inquiry will begin into the way the prosecution was handled.

This article was first published in the print edition of The Saturday Paper on 25 March 2023 as “Lehrmann’s next steps”.

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