‘Misleading, discourteous’: Judge’s swipe at Network Ten lawyers in Bruce Lehrmann costs hearing
Michael Lee has launched a stinging attack on the conduct of Ten’s lawyers in delivering ‘misleading’ statements while celebrating its defamation win against Bruce Lehrmann.
Federal Court judge Michael Lee has launched a stinging attack on Ten for delivering “misleading” statements when celebrating its defamation win against Bruce Lehrmann and acting with “discourtesy” towards the court, as the former Liberal staffer was granted an extension to appeal the landmark judgment.
Justice Lee on Wednesday indicated the network would recover at least some costs for the proceedings, but said he would consider whether the conduct of Ten’s lawyers in the wake of the judgment would have an impact on who pays what.
He also said Ten’s handling of an email sent to Ten by Brittany Higgins’ lawyer, in which she threatened to withdraw as a witness if the network offered to make any payment of damages to Mr Lehrmann, could be a factor in deciding costs.
The long-awaited judgment of the matter brought against Ten and presenter Lisa Wilkinson was handed down last month, finding Ten successfully made out its truth defence and proved, on the balance of probabilities, that Mr Lehrmann raped Ms Higgins in the office of Liberal senator Linda Reynolds.
However, Justice Lee found the network failed to make out its qualified privilege defence and acted unreasonably in its treatment of Mr Lehrmann when airing an interview on The Project with Ms Higgins.
Lawyers for Mr Lehrmann, Ten and Wilkinson returned to court on Wednesday for submissions on legal costs, the combined total of which are reportedly up to $10m. Ten’s barrister, Matthew Collins KC, on Wednesday argued Mr Lehrmann should pay its legal costs on an indemnity basis – a higher amount – because the former Liberal staffer knew the case was “doomed to fail” from the outset.
Dr Collins also submitted Mr Lehrmann had unreasonably rejected a “walkaway” offer in August last year under which the proceedings would have been dismissed without any admission of liability and without any costs order.
But Justice Lee on Wednesday questioned the validity of the offer made by Ten in light of an email sent from Ms Higgins’ lawyer, Leon Zwier, to Ten in August last year, in which he threatened that if Ten paid Mr Lehrmann damages or retract The Project interview, Ms Higgins would not be a witness in the case.
“It seems to me on the basis of the evidence that I should infer that Network 10 put itself in a situation where it would not make an offer of settlement, other than a walkaway offer of settlement,” Justice Lee said.
Dr Collins rejected this assertion, saying it was “factually false” that Ten made the “walkaway” offer in light of Ms Higgins’ demands.
Justice Lee took aim at Ten’s lawyer Justin Quill for a “misleading” speech made outside court after the judgment was handed down, which he said caused him “concern” and could have a bearing on his costs decision.
Mr Quill, a partner at Thomson Geer, gave a 10-minute address to the media after Justice Lee delivered his verdict last month, saying the result was a “resounding win for Channel 10”.
“One shouldn’t conflate or confuse the application of the legal test of reasonableness with what is good and reasonable,” Mr Quill said as part of the speech.
“Ultimately, I’ve got to say this: how can it be unreasonable to publish something that was true?”
Mr Quill also made comments disputing Justice Lee’s findings in relation to the Logies speech delivered by Wilkinson that caused the subsequent delay of Mr Lehrmann’s criminal trial.
In his judgment, Justice Lee said instruction given to Wilkinson by Ten’s in-house lawyers was “grossly improper and unjustifiable” and “could have imperilled Mr Lehrmann’s right to a fair trial”.
But Mr Quill told 2GB he disagreed with Justice Lee’s findings, claiming “it just shows an absolute lack of faith in our juries”.
Justice Lee on Wednesday described Mr Quill’s comments after the judgment as “misleading”, and said the lawyer did a “discourtesy” by making the comments without first reading the judgment.
“Network 10 apparently thought it was appropriate for a period of 48 hours following the delivery of the judgment to go around and effectively say that it had been vindicated in relation to all aspects of its conduct,” he said.
“If one reads those communications properly, that was quite misleading. I made it perfectly plain what occurred in this case was the respondents fell well short of a standard of reasonableness in the credulous way they went about reporting these allegations, and I was quite clear about that.”
In an affidavit released by the court on Wednesday, Mr Quill apologised “unreservedly” for the comments he made in relation to the Logies speech, and reiterated “my respect for this court, his Honour and the judgment delivered in this matter”.
He said he was not the solicitor acting for Ten in the matter, simply a partner at the firm which represented the network.
“When I said Network Ten did not accept everything in the judgment, I did not have instructions from Network Ten to say this,” he said. “The point I was seeking to convey was my personal view that I considered it was unlikely in all the circumstances that the Logies speech would have actually prejudiced Mr Lehrmann’s right to a fair trial.”
The Australian uses Thomson Geer as its legal representatives.
The court also heard Ten’s in-house lawyer Tasha Smithies, of whom Justice Lee was critical in his judgment, had expressed contrition for failing to accept the advice she gave Wilkinson had exposed the presenter to criticism.
In an affidavit released by the Federal Court, Ms Smithies said the judgment was “deeply distressing and embarrassing” and said she had “sought and will continue to seek to focus on how I can learn, grow and improve as a practitioner from this experience”.
Dr Collins also told the court on Wednesday there was no suggestion Ms Smithies “engaged in some campaign that has an intention to interfere with Mr Lehrmann’s right to a fair trial”.
He said he had made himself available to Ten’s editorial and legal staff to “provide training” in relation to Justice Lee’s findings.
Justice Lee on Wednesday granted Mr Lehrmann an extension until May 27 to file an appeal against the judgment, considering the lengthy material associated with the case.
The Australian this week revealed Mr Lehrmann, who is currently unemployed, is seeking financial assistance from international and local donors to help with costs incurred from an appeal.
The court on Wednesday heard a referee has been appointed to decide how much of Wilkinson’s legal costs were reasonable and will be picked up by Ten, following her decision to hire outside counsel.
The same referee will determine how much former Seven Spotlight producer Taylor Auerbach can recover after giving evidence in the final hours of the case.
An affidavit filed with the court by Auerbach’s lawyers include claims that he incurred legal costs of $39,176 in complying with a subpoena and another $19,371 in preparing to give evidence.
Justice Lee said Auerbach’s claims that he spent more than $17,000 when complying with a subpoena were “not on”.
“I’ve got to tell you, it’s not going to be anything like this,” he said.
Towards the conclusion of the hearing, Justice Lee said he had reached “a level of satisfaction” that there will be a costs order made in favour of Ten.
He reserved judgment for a later date, but indicated he would be “relatively prompt”.
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