What the Lehrmann case means for the future of defamation law in Australia

Who are the winners and losers in the Bruce Lehrmann defamation case?

Freedom of speech and the public’s right to know are winners.

Bruce Lehrmann.Credit: Alex Ellinghausen

Women subject to sexual assault and domestic violence gained some understanding from Justice Michael Lee. He recognised that the trauma a victim has suffered may lead to inconsistent recollections of the surrounding events, but that does not mean that they are lying about the core event.

Justice Lee is a winner for being able to sift through complex and inconsistent evidence and reach such a strong decision. He would make some of our best journalists jealous with his impressive turn of phrase.

The Federal Court is a winner. The way that Justices Lee and Anthony Besanko – who ruled in the Ben Roberts-Smith defamation case – handled very complex, challenging cases and the way the court handled the logistics, is impressive.

Network Ten and Lisa Wilkinson were successful in defending the defamation claim, but they were the subject of criticism by the judge.

They did not come out of the decision unscathed. In considering the back-up defence of qualified privilege, Justice Lee combed through and scrutinised the investigative and preparatory steps taken by The Project team, including the way comment was sought from Lehrmann, the veracity of questions put to Brittany Higgins and whether there was a genuine desire to engage with anyone beyond her for the content of the broadcast.

He found that the defence of qualified privilege failed as the Ten Network and Lisa Wilkinson had not acted reasonably. No surprises there. The media has basically never succeeded in a defence of qualified privilege because the courts say the media audience is too large and does not have the required interest. Substantial truth is the only real defence for the media.

The allegations of a political cover-up in particular did not survive the scrutiny of Justice Lee, who characterised that aspect of the broadcast as “… supposition without reasonable foundation in verifiable fact”. The conduct of both Ten and Wilkinson was bound to fall short of the standard of reasonableness required to make out the qualified privilege defence.

Unlike the Roberts-Smith case where the Nine Network (which owns this masthead) had a comprehensive win and will recover a great sum of its costs from Roberts-Smith and his billionaire backer, Kerry Stokes (subject, of course, to succeeding in the appeal), Ten will be millions of dollars out of pocket, even if it gets a costs order.

Federal Court Justice Michael Lee on Monday.

While Ten is likely to obtain an order to recover legal costs from Lehrmann, it’s hard to see how he could satisfy such an order. Personally, I doubt that he has that deep a pocket. Ten’s costs are significant as it has to pay its lawyers, and almost certainly Wilkinson’s own lawyers, too.

It raises the question as to whether the media should settle defamation cases on a commercial basis as News Corp Australia and the ABC did with Lehrmann, or fight to defend freedom of speech and the public’s right to know, but risk being out of pocket for millions of dollars, as the Ten Network is now likely to be.

Like Roberts-Smith, Lehrmann is the biggest loser. He was found on the civil burden of proof to have raped Brittany Higgins. Also like Roberts-Smith, who did not expect SAS soldiers to give evidence, Lehrmann did not expect Brittany Higgins to give evidence, and he did not expect her to be believed.

If the truth defence had failed Ten and Lehrmann had been successful, Justice Lee indicated he would have awarded only $20,000 in damages, one of the lowest amounts on the spectrum of damages available in defamation cases.

Justice Lee found that Lehrmann had behaved disgracefully, in that he defended the criminal charge on a false basis, lied to police, and then allowed that lie to go uncorrected before the jury. He found Lehrmann instructed his counsel to cross-examine a complainant of sexual assault in two legal proceedings on a knowingly false basis.

Again, this contrasts with the Roberts-Smith case, where Justice Besanko found so comprehensively for the Nine Network that he did not follow the normal course of saying what specific dollar amount would have been awarded to Roberts-Smith had he got it wrong.

Australia, and in particular Sydney, is recognised as the defamation capital of the world. Hopefully, undeserving people tempted to sue the media over critical publications will now have second thoughts.

There is little doubt that lawyers do well in defamation cases, but you rarely find a plaintiff who, at the end of the trial, believes they made the right move in suing. Just like the Roberts-Smith and Lehrmann cases, the evidence that came out at trial was far worse than the original publications – a high cost indeed.

Peter Bartlett is a partner of MinterEllison and represented Nine Network in its defamation trial against Ben Roberts-Smith.

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