Judge raises prospect of jury in Lehrmann defamation cases against Ten, News

A Federal Court judge has raised the prospect that Bruce Lehrmann’s defamation cases against Network Ten and News Corp will be heard by a jury, after he extended an expired one-year time limit to allow the former federal Liberal staffer to sue the media outlets.

In a significant development on Friday, Justice Michael Lee suggested a jury could determine factual issues in the cases, including Ten and News Corp’s truth defence.

Bruce Lehrmann enters the Federal Court in Sydney last month.Credit: Kate Geraghty

Lehrmann filed defamation proceedings against Ten and News Corp in February over interviews with his former colleague Brittany Higgins on The Project and news.com.au, broadcast and published on February 15, 2021.

Lehrmann alleges the interviews, which did not name him, conveyed a series of defamatory meanings, including that he raped Higgins in then-defence industry minister Linda Reynolds’ office in 2019. He denies the rape allegation.

Ten and News Corp, and their respective journalists Lisa Wilkinson and Samantha Maiden, deny or do not accept in their written defences that they identified Lehrmann.

If the court finds Lehrmann was identified, the media parties admit they conveyed the defamatory claims alleged, including the central claim of rape, and will seek to rely chiefly on defences of truth and qualified privilege – a defence relating to publications of public interest where a publisher has acted reasonably.

Should the cases proceed to trial and the truth defence be considered, the media parties will need to prove on the balance of probabilities that Lehrmann raped Higgins in Parliament House in 2019. The cases are being heard together.

While this is less onerous than the criminal standard of proof beyond reasonable doubt, the so-called Briginshaw principle applies in civil cases involving serious allegations and requires courts to proceed cautiously in making grave findings.

In his judgment, Lee extended the one-year limit to allow Lehrmann to sue over interviews that are now two years old.

He noted that in a criminal context “allegations of the type made in the [media outlets’] ... truth defences” usually, although not always, involved fact-finding “conducted by a jury comprised of ordinary men and women”.

“It is perhaps arguable that the ends of justice, including public confidence in the resolution of these disputes, might be promoted if a jury hears and determines at least some factual issues, rather than a judge,” Lee wrote.

“Having said this, given the vast publicity already afforded to these allegations, the multiplicity of proceedings and other logistical matters, I am sensible of potential difficulties in ordering a jury.”

If a jury was ordered and the case proceeded to trial, it would be the first time a jury was used in a Federal Court defamation case.

Lehrmann’s barrister, Matthew Richardson, SC, told the court in Sydney on Friday it was “extremely unlikely” his client would support a jury trial.

“The jury in the criminal trial was derailed; people have extremely strong views on this,” Richardson said.

“The chances of a hung jury are obviously high. It’s the most publicised rape case in probably Australian history and the entire community is divided on it.”

Matthew Collins, KC, for Ten, and Sue Chrysanthou, SC, for Wilkinson, said a jury trial would add considerably to the length of the trial.

“From our perspective, it seems to us that what Mr Richardson says has merit, having regard to what happened in Canberra last year [during the aborted criminal trial],” Chrysanthou said.

Lee said that “if it was a case which didn’t have this profile, I would regard it as a no-brainer that I would” order a jury.

University of Sydney Professor David Rolph, an expert in defamation law, said that “although trial by jury has been ordered once before in a defamation case in the Federal Court, we haven’t actually seen a matter go to trial”.

Civil trials, including defamation cases, must be conducted by a judge alone in the Federal Court unless it orders otherwise, and the court has previously made clear that the circumstances in which it will order a jury are rare. In state courts, either party has a right to elect for a jury in a defamation case.

“This might be one of those exceptionally rare cases where trial by jury would be the appropriate mode of proceeding,” Rolph said.

Lee told the parties on Friday that the court was empowered to order a jury trial “even if everyone opposed it”, but “I’m not suggesting I’m going to do that”. He invited written submissions from the parties on the question.

Lee said his decision on the limitation period did not involve a consideration of the merits of either case.

In order to succeed in his application to extend the limitation period to sue Ten and News Corp, Lehrmann needed to persuade the court that it was not reasonable for him in the circumstances to commence the proceedings within one year. Lee found he had met this test.

Lehrmann’s legal team had argued it was not reasonable because of legal advice he received to delay filing proceedings pending any criminal process, and health concerns including mental health issues.

But the media parties had pointed to text messages Lehrmann sent to his girlfriend and others immediately after the Higgins interview was aired on Ten, which suggested he had received legal advice a criminal trial was “off the cards completely” but he could file defamation proceedings.

Lehrmann gave evidence last month in court that he fabricated that advice to placate his girlfriend, and his lawyer had in fact told him that any defamation case would need to await the conclusion of the criminal process.

Lee concluded that text messages Lehrmann sent to his then-girlfriend and a friend were an unreliable basis on which to conclude he was advised he would never face a criminal charge.

Lehrmann was “flailing around” and “saying what he thought he needed to say to put the best ‘spin’” on the situation, Lee said. He was satisfied Lehrmann was being untruthful when he texted that he had received advice that criminal proceedings were “off the table”.

Lehrmann was named in the media in August 2021 after he was charged with sexual intercourse without consent.

He pleaded not guilty to the charge. His trial was aborted in October last year due to juror misconduct. The charge was later dropped altogether amid concerns about Higgins’ mental health. Lehrmann has always maintained his innocence.

Lehrmann is also suing the ABC for defamation for broadcasting a National Press Club address last year by Grace Tame and Higgins. That case was filed this month and did not require court leave to continue because it was filed just within the one-year limitation period.

Lee raised questions about whether all three cases should be heard together.

Collins suggested the ABC proceedings may raise narrower issues, making it undesirable for it to be heard with the Ten and News Corp cases.

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