Lisa Wilkinson returns fire in Lehrmann defamation appeal

Lisa Wilkinson has returned serve in Bruce Lehrmann’s defamation appeal after the former federal Liberal staffer launched a court bid to overturn a devastating finding that he raped Brittany Higgins in Parliament House.

In a document filed on Wednesday, Wilkinson has asked an appeal court to affirm Federal Court Justice Michael Lee’s decision to dismiss Lehrmann’s multimillion-dollar defamation case. However, the TV presenter is seeking to challenge the findings Lee made against her.

Lisa Wilkinson and Bruce Lehrmann during his Federal Court defamation case in Sydney.Credit: Dominic Lorrimer

In a landmark decision on April 15, Lee upheld Network Ten and Wilkinson’s truth defence to Lehrmann’s defamation suit over a February 2021 interview with Higgins, anchored by Wilkinson and aired on Ten’s The Project.

The judge found the media parties had proven on the balance of probabilities that Lehrmann raped his then-colleague Higgins in Parliament House in 2019. He dismissed the former staffer’s lawsuit.

However, Lee also found that Ten and Wilkinson would not have been able to rely on a fallback defence of qualified privilege if the truth defence had failed.

Qualified privilege is a defence protecting some publications of public interest where a media outlet and its journalists can show they acted reasonably. Lee found Ten and Wilkinson had not acted reasonably in airing the sexual assault allegation.

Lee said that “[The Project’s producer] Mr [Angus] Llewellyn, like Ms Wilkinson, started from the premise that what Ms Higgins said about her allegations was true.

“They resolved from the start to publish the exclusive story and were content to do the minimum required to reduce unacceptable litigation risk.”

Wilkinson is challenging those findings in the Full Court of the Federal Court. Her lawyers said in a response to Lehrmann’s notice of appeal that the defence “should have been found to have been established by” Wilkinson.

The former co-host of The Project had separate legal representation from her employer at the trial, and is challenging the findings made against her rather than Ten and its employees generally.

Findings about Lehrmann

Wilkinson is also challenging some of the factual findings made by Lee in his consideration of the rape allegation, including in relation to Lehrmann’s state of mind at the time of the rape.

Lee found that Lehrmann was “so intent upon gratification to be indifferent to Ms Higgins’ consent, and hence went ahead with sexual intercourse without caring whether she consented”, but did not find he had “actual cognitive awareness that Ms Higgins did not consent to having sex”.

Wilkinson’s lawyers say Lee should have found Lehrmann had knowledge of Higgins’ lack of consent, in light of the judge’s finding that she was passive “like a log”.

Funds for appeal

It is not yet clear how Lehrmann, who is an unemployed law student, would fund an appeal. He is seeking to challenge Lee’s decision on four bases, including that he was denied procedural fairness.

War veteran Ben Roberts-Smith agreed last year to orders requiring him to pay almost $1 million as security to cover the legal costs of Nine newspapers in the event he loses his appeal against his own devastating defamation loss. Ten and Wilkinson may also seek security for costs from Lehrmann.

An appeal would not require witnesses, including Higgins and Wilkinson, to give evidence afresh.

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