Lisa Wilkinson’s big win on legal fees fight

Justice Michael Lee has handed down his judgement over who should pay Lisa Wilkinson’s million dollar legal bills.

A judgement has been made over who should pay Lisa Wilkinson’s million dollar legal bills — and the result is a huge victory for the TV host in her long-running battle to get her employer to foot the bill.

As a result, Channel Ten could now end up facing legal fees of over $2 million to fight the case even if the broadcaster wins.

It remains to be seen if the plaintiff, Bruce Lehrmann, who is unemployed and living in an apartment paid for by Channel 7, would have any capacity to pay Ten’s legal fees in any costs orders even if he loses the case.

The TV broadcaster’s decision to hire her own legal team for a defamation trial and ask her employer to pay for it has sparked tension behind the scenes for months.

When Wilkinson warned the Ten Network she would file a cross claim for legal costs, her employer initially agreed it was liable to indemnify her against an award of damages or costs and for “reasonable legal costs”.

However, a dispute arose over whether the costs — which had already reached $700,000 before the trial — are reasonable or involve duplication. The costs are now expected to run to over $1 million.

Justice Michael Lee today ruled that her decision was reasonable.

“In all circumstances it was reasonable for Ms Wilkinson to retain separate lawyers,’’ Justice Lee said on Wednesday.

Lisa Wilkinson arrives at the Federal Court in Sydney. Picture: NCA NewsWire / Simon Bullard

Brittany Higgins was awarded a $2.4m payout. Picture: Lisa Maree Williams/Getty Images

“We have now reached the stage where the vast bulk of any legal costs incurred by Ms Wilkinson, have already been incurred.”

Wilkinson’s Logies speech that sparked a delay to the criminal trial was central to the legal argument, with Ms Wilkinson arguing she was given the green light by Ten’s lawyers to give the speech.

She then says was shocked that her employer refused to publicly detail the advice she was acting on.

As a result, she said she lost confidence in the legal advice and her employer in safe-guarding her interests.

On this basis, the legal advice is relevant not only to the issue of whether she acted reasonably at all times in the defamation matter but also why she says she felt compelled to obtain separate legal representation.

“I’ve indicated to the parties that I consider that I will be in a position to deliver judgement in the principal proceedings in March or April,’’ Justice Lee said.

Exactly how much Ten is required to pay will not be determined until the conclusion of the defamation trial.

A judgment call on the defamation trial is expected in March or April.

“It seems to me plain beyond peradventure in all circumstances it was reasonable for Ms Wilkinson to retain separate lawyers,” Justice Lee said.

“And accordingly, the question becomes where do we go from there.”

Earlier, lawyers for Network Ten indicated they would no longer adhere to the position that “it was unreasonable for Ms Wilkinson to retain her own legal team”.

Wilkinson’s lawyer Michael Elliot SC accused Ten of refusing to pay on the eve of the trial and said the result was “an embarrassment” for the broadcaster.

The result he suggested “reflects the vindication of our position”.

‘Serious issues’ with Higgins’ $2.4m payout

A judge told the Federal Court that the “serious credit issues” involving Mr Lehrmann and Ms Higgins included the former Liberal staffer’s account of her $2.4 million taxpayer-funded payout.

Justice Lee in the defamation trial noted on Wednesday that Ms Higgins had told the court the Commonwealth admitted liability over her alleged rape.

However, the settlement deed was then tendered and clearly stated the Commonwealth did not accept liability.

Justice Lee said both parties have made in-court and out-of-court representations that were inconsistent with the evidence given in the defamation trial last year.

“There are a number of significant differences they’ve given in court, a number of in-court representations and out-of-court representations,” he said.

Specifically, he raised Ms Higgins’ $2.4 million settlement deed with the Commonwealth and her account of that document.

“There were a range of representations made by Ms Higgins where she was under obligation to tell the truth,” he said.

Wilkinson’s Logies speech was central to the case.

‘Cadet journalist’

Justice Lee has told the Federal Court it should have been obvious to “a cadet journalist” that Wilkinson’s Logies speech was a potential issue.

During legal argument in the Federal Court, the judge said he didn’t understand how Wilkinson, given her experience, didn’t realise her Logies speech was a potential contempt.

Nevertheless in the circumstances of Ten’s legal advice, he agreed that it was different to “someone self-indulgently getting up and saying what’s on the top of their head”.

Prior to Ten confirming the legal advice, Justice Lee said he was left to believe Wilkinson gave the speech “willy nilly, without any regard to advice”.

The potential risks, he said, were “something that ought to have been obvious to a cadet journalist”.

“But having said that, she did make efforts to take advice,” Justice Lee said.

He asked Wilkinson’s barrister if the TV host’s decision to make the Logies speech was “odd” given she was clearly aware of the legal risks.

“She knows that she has to ensure that anything she says is subject to legal advice,’’ Justice Lee said.

“Not only did she turn her mind to it, but she was actually quite careful and prescient about raising it at the time.

“(But) I think there is a danger of elevating this well beyond its relevance in the main case, which at the end of the day...the substantial truth defence on the question (of) what happened in a room.”

Wilkinson’s barrister Sue Chrysanthou noted that this was “how it had been presented in the media for a year”.

Brittany Higgins with Lisa Wilkinson. Picture: Supplied

Email missed

Marlia Saunders, a lawyer at Thomson Geer who acted for Network Ten, was cross-examined on Wednesday over the night she received an email regarding the commencement of the defamation proceedings.

On the night, she received a brief email from Mr Lehrmann’s legal firm Mark O’Brien Legal stating the former political staffer was suing the network.

She had previously received a concerns notice naming Network Ten but not Wilkinson.

The brief email named Wilkinson as a respondent in the matter, a fact Ms Saunders said she initially missed.

“You read it to the point where there are defamation proceedings against Network Ten?” Wilkinson’s barrister Michael Elliott SC asked.

“I guess so,” Ms Saunders replied.

“But you didn’t read on to see ‘Ms Wilkinson’?”

“Yes,’’ Ms Saunders replied.

He asked Ms Saunders if that was because her concern was about Network Ten and not Wilkinson.

“Absolutely not,” she replied.

Wilkinson has previously told the court she did not know she was being sued until she woke up at 8am on February 8, 2023, and read media coverage.

Lisa Wilkinson ‘on the books for the defamation case’

Wilkinson’s barrister Michael Elliott SC told the Federal Court on Wednesday his client had not been doing work for Ten since late 2022.

“The only thing Ms Wilkinson is doing for Ten is staying on the books until this defamation case is over?’’ he asked Ten’s litigation counsel Tasha Smithies.

Ms Smithies replied: “I don’t know.”

Wilkinson has confirmed in an affidavit that she was dumped from The Project by Ten CEO Beverley McGarvey and it was not at a time of her choosing.

“I was shocked, embarrassed and deeply disappointed by Ms McGarvey’s decision to remove me from The Project,” she said.

“At that time, my most recent contract as co-host of The Project had only been signed 11 months before and still had more than two years to run.”

Wilkinson said she found out after her agent Nick Fordham had a meeting with Ms McGarvey.

Lisa Wilkinson’s Logies advice

The lawyer who told Wilkinson her Logies speech was “OK” has told the Federal Court that she stands by the advice on the basis that the TV host had become “part of the story” and could not deviate from her support for Ms Higgins in any awards speech.

The claim prompted a terse interrogation by Justice Lee on Wednesday, who pointedly told Ten’s senior litigation counsel Tasha Smithies he wanted to give her every opportunity to explain the legal advice.

Ms Smithies is the senior lawyer at Ten who approved Wilkinson’s Logies acceptance speech in June, 2022 after reading it on the TV host’s iPad.

The speech later resulted in a delay to the criminal trial of Mr Lehrmann who was charged with rape but never convicted. He maintains his innocence.

Ms Smithies said she stood by the legal advice notwithstanding the fallout that resulted in a delay to the criminal trial and Wilkinson’s lawyers contend led to the media storm that devastated the TV host.

Ms Smithies said she felt that if Wilkinson had “deviated” from her open support for Ms Higgins it might cause other issues in terms of her being called as a Crown witness in the criminal trial.

Network Ten’s senior litigation counsel Tasha Smithies.

“Ms Wilkinson was inextricably intertwined with Ms Higgins and the words I would use is Ms Wilkinson became part of the story,” Ms Smithies said.

“That continued through the justice march in 2021. It continued throughout 2021. And that continuing support continued through the anniversary of the story.

“It was linked in with the friendship and support between Ms Higgins and Grace (Tame) time.

“So, to deviate from that position in the speech, in my mind was more prejudicial because it would be saying that she was wavering in her support of Ms Higgins.”

Justice Lee asked if what Wilkinson was doing was lending credence to the representation of the complaint as a woman whose courage whose story must be believed.

“You, as a solicitor, thought that that was appropriate to occur by Crown witness eight days before a criminal trial of a man who’s facing a criminal a serious criminal charge?” he asked.

“I think given all the circumstances available, that that was the preferred course to her not giving a speech,” Ms Smithies said.

“Thank you,’’ Justice Lee said.

Wilkinson accused Ten of abandoning her in the wake of the Logies speech.

The TV host and her employer are in dispute over whether the network should foot the bill for her retaining a separate legal team led by Sue Chrysanthou to defend the defamation.

Brittany Higgins, Bruce Lehrmann credit issues

Earlier Justice Lee noted again that the credibility of Mr Lehrmann and Ms Higgins in the defamation case was “particularly important” in the defamation trial.

“In relation to the principal issue, it is clear that there are significant credit issues in relation to the two principal witnesses … certainly Mr Lehrmann and Ms Higgins,” he said.

“There are quite significant differences in the evidence they’ve given in-court and a number of out-of-court representations, and in-court representations in respect of Ms Higgins, at the criminal trial.

“You have to be careful about when you’re making credit findings working out, if there are general credit problems with witnesses, what parts of their evidence you can believe. Hence, credit is particularly important in this case,” he said.

“So I just want to give everyone a chance to deal with anything they want to say concerning the issue of credit.”