Key decision made in Bruce Lehrmann defamation case
The Federal Court has handed down its decision on whether Bruce Lehrmann can proceed with his defamation lawsuits against two media giants.
After being given the green light to proceed with a defamation lawsuit against two media giants, former political staffer Bruce Lehrmann will push for a judge-alone trial because it pertained to “the most publicised rape case in Australian history”.
Justice Michael Lee on Friday ruled Mr Lehrmann would be allowed to file the lawsuit outside of a one-year deadline, with the case now set to be contested during a four-week trial later this year.
Mr Lehrmann launched defamation action in March against News Corp’s News Life Media, Network 10 and journalists Samantha Maiden and Lisa Wilkinson.
His claims relate to their coverage in 2021 of Brittany Higgins’ allegations that she was raped at Parliament House in March 2019.
Mr Lehrmann was not named in the reports but claims he was nevertheless identified by the media companies.
Mr Lehrmann claims the article conveyed four defamatory meanings that he “raped Brittany Higgins in Defence Minister Linda Reynolds’ office in 2019”.
He has denied all allegations.
The former political staffer applied to the court for an extension of time. The media companies argued the application should be denied because Mr Lehrmann filed a full year past the deadline.
Defamation proceedings are ordinarily required to be filed within a year of the publication, but Mr Lehrmann lodged the action after two years.
The media companies argued the delay was unlawful, but Mr Lehrmann’s barrister Matthew Richardson SC argued he could not have reasonably launched proceedings earlier.
Lawyers for the media companies relied on, in part, a series of text messages sent by Mr Lehrmann that they argued suggest he had engaged a defamation lawyer on the day the stories were published and broadcast.
Mr Lehrmann told the Federal Court in March that he engaged a criminal lawyer after reading Ms Maiden’s article on February 15, 2021.
He said he watched The Project broadcast from his lawyer’s Sydney office that evening as he drank whiskey.
The court was told he said in messages to his then girlfriend hours prior to Channel 10’s broadcast: “If I am named tonight (his lawyer) says I’m up for millions as defamation”
The court heard he also texted to a friend: “I’ve got two lawyers now” and “I’ve got criminal and a defamation”.
Under cross-examination in March, Mr Lehrmann said the text was a fabrication of a conversation that he invented to “placate” his “distraught” girlfriend and he was putting on a “brave face”.
Justice Lee, in his judgment published on Friday afternoon, said Mr Lehrmann’s texts: “must be seen through the prism of a man under stress, flailing around during an unorthodox conference and drinking session, and saying what he thought he needed to say to put the best ‘spin’ on what he perceived to be an appalling situation.”
Mr Lehrmann stood trial in the ACT Supreme Court last year after pleading not guilty to sexually assaulting Ms Higgins, but the trial was aborted due to juror misconduct.
The charges were subsequently dropped by the Director of Public Prosecutions and Mr Lehrmann has continued to deny the allegations.
Mr Lehrmann argued that he delayed bringing defamation proceedings because of legal advice, the criminal proceedings and health issues.
Justice Lee said it would have been problematic to initiate defamation proceedings prior to the conclusion of the criminal matter and that Mr Lehrmann was “entitled to be cautious given the stakes”.
“Whatever way one looks at it, for Mr Lehrmann to have started defamation proceedings absent the resolution of the criminal allegations would have been for him to take a step into the unknown,” Justice Lee said.
With the limitation period having been extended, and the matter to be decided at trial later in November, both News Life Media and Network 10 said in their defences that they would rely on defences of truth and qualified privilege and seek to prove Ms Higgins’ allegations.
News Life Media said the imputations put forward by Mr Lehrmann were true because he was “sexually attracted” to Ms Higgins, touched her familiarly, saw her drunk and signed her into Parliament House.
The defence says Ms Maiden undertook extensive investigations before publishing any stories, including an extensive face-to-face interview, a dossier of information, photographs, audio recordings, emails and text messages.
Justice Lee’s decision on Friday comes three weeks after the former political adviser launched a third defamation lawsuit regarding the rape allegations.
On April 26, Mr Lehrmann filed documents revealing he is suing the ABC over its live broadcast of Ms Higgins’ address to the National Press Club on February 9, 2022.
He claims broadcasting the address implied he had raped Ms Higgins on a couch at Parliament House in March 2019. He was not named in the speech.
It’syet to be decided if the ABC matter will be heard alongside the trial involving the other media companies.
The trial is due to commence November 20 and Mr Richardson told the court that Mr Lehrmann was unlikely to consent to a jury trial, considering the criminal trial was aborted due to juror misconduct.
“Straight off the bat, your honour, the thing that occurs to me is the risk of a hung jury,” Mr Richardson said.
“I think it’s extremely unlikely that my client will consent to that.
“The jury in the criminal trial was derailed. People have extremely strong views on this.
“It’s the most publicised rape case in Australian history; the entire community is divided on it.”
The court heard that barrister Sue Chrysanthou SC, representing Ms Wilkinson, was seeking to have Mr Lehrmann record his version of events of the night of the alleged incident.
The court heard he had never given his version of events under oath and the media parties wished to know what it entailed ahead of his cross examination at trial.
His interview with the Australian Federal Police was played during his criminal trial, however he has never given sworn testimony under oath.
“We wish to have him on oath, in a document, in advance of the trial, so we can cross examine him on that when we get to November,” Ms Chrysanthou said.
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