Lawyers question Bruce Lehrmann’s silence on suing delay

Bruce Lehrmann gave “no evidence” about why he didn’t sue two media outlets and their two journalists within the legal time limit, a court has heard.

The legal teams behind the two media outlets being sued by Bruce Lehrmann over its coverage of Brittany Higgins’ rape allegation have claimed Mr Lehrmann “gave no evidence” about why he didn’t sue in time.

Mr Lehrmann is suing Channel 10 and Lisa Wilkinson, as well as News Corp’s News Life Media and Samantha Maiden, over their TV and online stories.

But he took two years to sue them – twice the normal legal time limit to start such proceedings – and Justice Michael Lee has to rule on whether to extend that deadline.

His decision will pave the way for whether the case goes to trial or not.

Mr Lehrmann’s legal team is relying on three reasons for his delay in suing: receiving legal advice from criminal lawyer Warwick Korn against doing so, the fact he was also facing criminal proceedings and his mental health.

Mr Lehrmann has always denied having sex with Ms Higgins and the criminal charge against him was dropped.

In closing arguments on Thursday, Lisa Wilkinson’s lawyer, Sue Chrysanthou SC, submitted to the Federal Court that Mr Lehrmann intended to sue the TV network “as soon as he engaged solicitors … and no evidence has been given as to why he didn’t do that”.

Ms Chrysanthou said Mr Lehrmann did not send Ms Wilkinson a concerns notice alerting her to his concerns and giving her an opportunity to respond until he officially commenced defamation proceedings – one year beyond the normal legal limit. Lawyers for Mr Lehrmann have asserted that Ms Wilkinson was alerted to the claim when a letter was sent to her employer, Channel Ten.

In the closing remarks of News Life Media’s lawyer, Renee Enbom, the court heard Mr Lehrmann did not give any evidence about why he did not sue during the 12-month limitation period.

“No evidence at all was given in chief as to his actual reason for not suing in time,” Ms Enbom said.

“And that means there is a significant gap in the evidence”.

Justice Michael Lee said “there was some” in re-examination,” to which Ms Enbom said he was only asked if he had spoken to media or a public relations consultant.

But Justice Lee said it seemed to him Mr Lehrmann did give his reasoning, which was that he was given advice by his lawyer, Mr Korn, not to sue until potential criminal proceedings had ended.

But Mr Lehrmann’s lawyer Matthew Richardson SC told the court in his closing remarks that the choice not to give a concerns notice “has nothing to do with the decision to extend time”.

Mr Richardson added it would not have been reasonable for Mr Lehrmann to have sought defamation advice from a second lawyer after Mr Korn had advised to wait to sue – as the outlet’s lawyers suggested he should have done.

“Any logical person would have seen it as reasonable advice and there was no reason not to follow it,” he said.

The court heard there was also the issue of “financial capacity” for Mr Lehrmann to sue, which Mr Richardson said “certainly wasn’t the primary reason but … was something on his mind”.

At the end of closing arguments, Ms Chrysanthou stood up to tell the court there was nothing to say Mr Lehrmann was in a better financial position now.

“He’s obviously been able to obtain lawyers now, while he’s an unemployed law student,” she said.

Bruce Lehrmann leaves court. Picture: NCA NewsWire/ Flavio Brancaleone

Lehrmann’s version of events is ‘inherently unbelievable’

The court heard of a colour-coded system Channel 10’s lawyers have made, which divide Mr Lehrmann’s texts into what he himself told the court were honest or fabricated – claiming he switched between telling the truth and lying within seconds

Channel 10’s lawyer, Matt Collins KC, told the court he had made a colour-coded system showing green for the texts Mr Lehrmann said in the witness box were true, and red for texts he said were “fabrications or white lies”.

Text messages were earlier tendered to court which Mr Lehrmann sent his then-girlfriend and friend as he sat in the office of criminal lawyer Mr Korn, whom he engaged on the day the stories broke.

Today, Dr Collins again read out several of those texts – this time showing how they fitted into his colour-coded system.

“At 4.58pm, (he wrote that Mr Korn) doesn’t want any money,” Dr Collins told the court.

“The witness says that was true”.

“Fourteen seconds later, he (writes to his girlfriend that Mr Korn) reckons defamation is definite – he says that is fabricated”.

Dr Collins told the court Mr Lehrmann then texted his girlfriend, “If I’m named tonight, he (Mr Korn) says I’m up for millions as defamation” and he said that was false, and then 13 seconds later wrote that his friend may join them in the office, which he said was true.

“He asks Your Honour to accept that he’s sitting there with a lawyer, on the most traumatic day of his life. He’s giving the lawyer instructions, and he’s receiving advice,” Dr Collins said.

“Simultaneously, he’s got the presence of mind to send messages which are a mixture of presumably verbatim things that Mr Korn said to him and then fabrications which he now says Your Honour should reject because he was trying to placate his girlfriend. It’s just inherently unbelievable in our respectful submission”.

Justice Lee said it might be “unbelievable” but he doesn’t know if it’s “right to say it’s inherently unbelievable that somebody who has a girlfriend, finding out they’ve been accused of raping somebody else, would be willing to say false things to the girlfriend in order to say ‘don’t worry about this, there’s nothing in it’.”

“That doesn’t seem inherently improbable to me; it’s not the way in which humans behave,” Justice Lee said.

Dr Collins told the court Mr Lehrmann then texted his girlfriend, “If I’m named tonight, he (Mr Korn) says I’m up for millions as defamation” and he said that was false, and then 13 seconds later wrote that his friend may join them in the office, which he said was true.

“He asks Your Honour to accept that he’s sitting there with a lawyer, on the most traumatic day of his life. He’s giving the lawyer instructions, and he’s receiving advice,” Dr Collins said.

“Simultaneously, he’s got the presence of mind to send messages which are a mixture of presumably verbatim things that Mr Korn said to him and then fabrications which he now says Your Honour should reject because he was trying to placate his girlfriend. It’s just inherently unbelievable in our respectful submission”.

Justice Lee said it might be “unbelievable” but he doesn’t know if it’s “right to say it’s inherently unbelievable that somebody who has a girlfriend, finding out they’ve been accused of raping somebody else, would be willing to say false things to the girlfriend in order to say ‘don’t worry about this, there’s nothing in it’.”

“That doesn’t seem inherently improbable to me; it’s not the way in which humans behave,” Justice Lee said.

‘So what’ Lehrmann lied to former girlfriend, lawyer says

Earlier on Thursday, Mr Lehrmann’s lawyer, Matthew Richardson SC, told the court “so what” regarding Mr Lehrmann’s “fabricated” texts, including saying that he had engaged both a defamation and criminal lawyer and that “criminal is off the cards”.

The court heard Mr Lehrmann texted a friend when The Project had ended, saying: “I won’t be going to prison.”

Mr Richardson told the court: “The bulk of the evidence relied upon (by the media outlets) is really from one evening, this first evening, a bunch of SMS messages sent to his girlfriend and friends”.

“The day that this allegation becomes national headlines, the day before he’s admitted to a mental health facility.

“My submission is, of course he was trying to say to his girlfriend and friends that it would be okay, that he wasn’t going to jail, that he wouldn’t be prosecuted. So what?”.

Referring to a submission from the other side’s lawyers that Mr Lehrmann could be described as a “habitual liar” due to his evidence, Mr Richardson said: “this is unfair for an individual found in this situation”.

Mr Lehrmann’s lawyer will not give evidence

The court also heard Mr Lehrmann’s original criminal lawyer in the case will not give evidence.

It was told last week Mr Korn would give evidence today as to conversations he had with Mr Lehrmann on the day of the original media publication and broadcast.

Mr Lehrmann's previous lawyer Warwick Korn.

Mr Lehrmann gave evidence to the Federal Court last week that he met Mr Korn on February 15, 2021, for criminal advice, not defamation advice.

Mr Lehrmann told the court that text messages sent to his then girlfriend on the day in which he relayed conversations with Mr Korn over possible defamation action were fabricated to “placate” her.

At last week’s hearing, Mr Lehrmann told the court Mr Korn had been recommended to him by close friends, Harry Hughes and John Macgowan, for “obvious criminal proceedings or an investigation … that was about to be undertaken”.

He told the court that as he sat in Mr Korn’s office and watched The Project air, Mr Korn gave advice to wait before starting defamation proceedings.

But as the hearing continued this morning, Justice Lee asked Mr Richardson if he was calling Mr Korn to give evidence.

Mr Richardson responded: “No, Your Honour”.

Dr Collins said it was “remarkable” Mr Korn would not be called to give evidence, considering Mr Lehrmann’s lawyers asked for a 1.5hr adjournment at last week’s hearing to determine when Mr Korn would be available to speak.

Justice Lee said “We are where we are”.

Bruce Lehrmann leaving court last week in Sydney. Picture: NCA NewsWire/ Flavio Brancaleone

Lehrmann claims he ‘fabricated’ texts

The first public hearing into the limitation period — which was one week ago — centred largely around the legal advice argument and whether Mr Lehrmann did in fact receive legal advice against suing in time, as he claimed.

Referring to the “ up for millions” text, Dr Collins asked:

“Did he (Mr Korn) say to you ‘you’ll be up for a lot of money from Channel 10 as well as from the government and the department of finance’?”

Mr Lehrmann responded: “I don’t believe he did say that.”

Mr Lehrmann was asked why he said to his girlfriend “he says” in the text about being “up for millions” if Mr Korn did not say that.

Mr Lehrmann said “Rome was burning” and he wanted to “put on a brave face” for his “incredibly stressed and traumatised” girlfriend.

“So you made up a conversation with your lawyer,” Dr Collins asked, to which Mr Lehrmann said: “yes”.

Brittany Higgins. Picture: NCA NewsWire / Gary Ramage

At the first hearing, Mr Lehrmann claimed he also made up texts to his friend, Tahlia Robertson, in which he said he had “two lawyers,” one criminal and one for defamation.

Dr Collins grilled Mr Lehrmann about his evidence not adding up. He was asked whether he contacted Ms Robertson, telling her he needed a defamation lawyer, on February 15, before The Project aired.

Mr Lehrmann responded: “I don’t agree with that, no,” he responded.

He was asked again: “You asked her for a recommendation for a defamation lawyer and she provided you one?”

“No,” Mr Lehrmann responded. He said he had asked for a criminal lawyer.

Dr Collins responded that he “already had a criminal lawyer by the time you asked for a criminal lawyer,” to which Mr Lehrmann said: “I was seeking options until such time I had a face-to-face meeting with Mr Korn”.

Dr Collins told the court: “I’ve caught you out haven’t I, Mr Lehrmann? You gave his honour evidence you had had a phone call with Mr Korn to arrange a meeting that very day.

“And you’d had that conversation before you had this conversation with (friend) Ms Robertson. You had no need to be scouting around for a second criminal lawyer when you hadn’t even met with the first.”

The court also heard how Mr Lehrmann was “outraged” when the stories broke, saying he wanted to “fight back against the media”.

He said he was “not in a good way” and spent 13 days getting mental health support in hospital.

The hearing continues.