Lisa Wilkinson launches fresh salvo in fight with Bruce Lehrmann

Lisa Wilkinson has urged an appeal court to throw out Bruce Lehrmann’s bid to overturn his damning defamation loss and insisted he suffered no unfairness during the multimillion-dollar trial.

Lawyers for the prominent journalist said in submissions filed in the Federal Court on Monday that Lehrmann’s appeal grounds were “without merit”.

Lisa Wilkinson and Bruce Lehrmann outside the Federal Court in Sydney during his defamation case.Credit: Sydney Morning Herald

Federal Court Justice Michael Lee found on the balance of probabilities last year that Lehrmann, who was an adviser to the then-federal Liberal defence industry minister Linda Reynolds, had raped his colleague Brittany Higgins in Parliament House in Canberra in 2019.

As a result of that finding, Lee dismissed Lehrmann’s defamation lawsuit against Network Ten and Wilkinson over an interview with Higgins aired on The Project in 2021. Lehrmann has filed an appeal in the Full Court of the Federal Court.

Lehrmann’s lawyer, Zali Burrows, has alleged Lehrmann was denied procedural fairness because Lee made findings about the nature of the rape that differed from Ten’s alleged depiction of a “violent rape” during which Higgins said “‘no’ at least half a dozen times”.

The judge did not find that Higgins had said “no on a loop” and said it was more likely she was “‘passive’ during the sexual act”.

Bruce Lehrmann’s lawyer Zali Burrows.Credit: Edwina Pickles

He found Lehrmann was reckless about consent because he “did not care one way or another” whether an intoxicated Higgins “understood or agreed to what was going on”.

Burrows alleges procedural fairness required further questions be put to Lehrmann in court before the judge could make a finding about recklessness.

But Wilkinson’s barristers, Sue Chrysanthou, SC, and Barry Dean, said in written submissions that the judge’s findings could not have been a surprise because Wilkinson’s defence during the trial alleged Lehrmann either knew Higgins did not consent or was “reckless as to whether Higgins consented”.

“Given his emphatic denials of sexual intercourse or any similar intimate interaction whatsoever, there was no lack of fairness in not putting to Mr Lehrmann that he was reckless,” the submissions said.

Brittany Higgins outside the Federal Court in Sydney in 2023.Credit: Louise Kennerley

They said Lehrmann’s lawyers took a different approach during the trial, but his new lawyer “now apparently [takes] the view that it was unfair … not [to] have asked him specific questions about consent, namely recklessness, presumably something like ‘you didn’t care if she was consenting one or way the other, did you?’ ”

“It is difficult to see what difference putting those propositions would have made or how Mr Lehrmann has been denied natural justice or procedural fairness by the fact that this line of questioning was not pursued.”

During the trial in 2023, Ten’s barrister, Dr Matt Collins, KC, put to Lehrmann during cross-examination that he had sex with Higgins on the couch in Reynolds’ office in the early hours of March 23, 2019.

“I did not,” Lehrmann replied.

Lehrmann said later in court that he “didn’t get consent because I didn’t have sexual intercourse with her”.

Lehrmann replied, “No, Dr Collins”, when it was put to him that he was aware Higgins was either passed out or semiconscious.

In a separate case, a former producer on Seven’s Spotlight program, Taylor Auerbach, is suing the network in the Federal Court over comments it made before Auerbach’s surprise appearance as a witness in the Lehrmann defamation case.

Documents released by the court on Tuesday reveal Auerbach will claim Seven breached a non-disparagement clause in a settlement deed and defamed him by suggesting he was disciplined over spending on a corporate credit card.

Former Spotlight producer Taylor Auerbach outside the Federal Court in Sydney in April last year.Credit: Dion Georgopoulos

Auerbach gave evidence in the defamation trial that in November 2022 he put $10,000 in expenses associated with two masseuses for himself and Lehrmann on a corporate credit card.

At the time, Seven was working to secure an exclusive interview deal with Lehrmann.

Auerbach said in his lawsuit that he was “never disciplined over the incident” and “Seven never ‘insisted’ the monies be repaid in line with its expense policy”, as the network claimed in comments to News Corp and the ABC.

“To the contrary, Seven dissuaded Auerbach from doing so and instead instructed him to attempt to track down the massage service provider, withdraw cash from a bank branch, and offer the individual a ‘bonus’ in return for reversing the credit card charges and wiping them from the Seven accounting records,” his statement of claim said.

“Less than a month later, Auerbach was sent to Tasmania to play golf with Bruce Lehrmann and instructed to use the same credit card to purchase golf equipment for Mr Lehrmann and the expensive course fees at championship course Barnbougle.”

Seven has yet to file a defence. Auerbach is seeking a declaration that the network breached the non-disparagement clause, damages, and an order restraining future publication of similar comments.

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