Brittany Higgins’ demand: I won’t help Lisa Wilkinson unless she dumps her lawyer Sue Chrysanthou

Brittany Higgins told Network Ten she would not assist Lisa Wilkinson’s high profile silk, Sue Chrysanthou SC, in defending Bruce Lehrmann’s defamation action against Wilkinson.

Lisa Wilkinson arrives at a Sydney court alongside her barrister Sue Chrysanthou SC during Bruce Lehrmann’s defamation case. Picture: NCA NewsWire / Damian Shaw

Brittany Higgins told Network Ten she would not assist Lisa Wilkinson’s high profile silk, Sue Chrysanthou SC, in defending Bruce Lehrmann’s defamation action against Wilkinson and the network, newly released documents show.

The extraordinary demand by Ms Higgins’ long-time lawyer, Leon Zwier, that he and Higgins would only assist if Wilkinson used the same lawyers as Ten, is contained in an email tendered in affidavits to the Federal Court.

When Ten passed on the message to Ms Wilkinson, telling her to dump Ms Chrysanthou, the TV presenter accused the network of engaging in the “weaponisation of an alleged rape victim”.

Ms Wilkinson says she was concerned that Ten was more interested in protecting its own interests than hers, as the network had refused to state publicly that she gave her controversial Logies speech only after it was approved by Ten’s lawyers.

The former host of The Project was also upset that Ten had hired barrister Matt Collins KC - who had sharply criticised her Logies speech on breakfast television as “ill advised” and potentially prejudicial to Lehrmann’s upcoming trial.

In a 15 March 2023 email to Ten boss Bev McGarvey, Mr Zwier wrote: “Brittany has instructed me not to assist lawyers and counsel currently retained by Lisa Wilkinson to defend civil claims by Lehrmann against Lisa Wilkinson.

“I am not prepared to work with Lisa’s current senior Counsel (Chrysanthou), under any circumstances. And the more Brittany is required to deal with differing lawyers the worse it is for her to manage the civil trial process to the detriment of those defending Lehrmann’s civil claims.

“If Lisa Wilkinson subsequently elects to retain the same lawyers as Ten then, the process will be smoother, more orderly and manageable.”

That demand was questioned by eminent silk Bret Walker SC and leading defamation lawyer Patrick George, to whom Ms Wilkinson had sought advice on Ten’s refusal to pay her legal costs.

“This stipulation is at the least unwise made by a witness and offered in return for the witness’ assistance in the proceedings,” the lawyers said. “It shows a lack of regard for the complexities of representation of a party’s interests, particularly when those interests are potentially in conflict with the assisted party.”

Mr Walker and Mr George were also critical of a proviso by Mr Zwier that Higgins was only assisting “on the basis that your client(s) will not offer Lehrmann a payment of damages or a retraction of the defamatory statements or an apology or costs (or any other relief) to settle the civil claims commenced by Lehrmann against your clients”.

Mr Walker and Mr George note in their advice that “this seems, at the least, an unwise proviso to be stipulated by a witness to a party in return for the witness’ assistance in the proceedings.”

Brittany Higgins arrives at Federal Court with lawyer Leon Zwier (left) and fiance David Sharaz (right). Picture: NCA NewsWire / Jeremy Piper

The pair advise that Ms Wilkinson is entitled to separate representation from Ten to defend the defamation proceedings but note that given “the Higgins’ stipulations above as to the basis on which she is prepared to give Ten assistance in the conduct of the defence, to the exclusion of Lisa’s separate representation, that circumstance will have to be managed sensitively by the lawyers for Ten in the interests of a successful defence for both employer and employee.”

Ten’s senior counsel Tasha Smithies notes in her affidavit that Ms Higgins was integral to any truth defence that Ten or Wilkinson would put forward.

“I do not understand how informing Ms Wilkinson and Mr Fordham of the fact that Ms Higgins, a crucial witness, did not want to assist their choice of legal representation constitutes weaponisation of Ms Higgins,” Smithies said.

Ms McGarvey wrote to Ms Wilkinson’s agent, Nick Fordham a few days later saying that “Lisa’s best interests are not served by her selection of senior counsel, in circumstances in which Lisa is running defences that rely on the truth of an account of a key witness, Ms Brittany Higgins, and Ms Higgins has instructed her lawyer that she will not assist counsel currently retained by Lisa to defend the defamation claim against Lisa.

‘In these particular circumstances, it does not seem that Lisa’s prospects of defending the

defamation claim are optimised, and are potentially compromised, by the lack of access of

Lisa’s legal team to a key witness in the defence.

“In such circumstances and as a matter of course, we would expect that alternative counsel be substituted so that access can be secured to a key defence witness with a view to avoiding any possible compromise in the defence arising from lack of access.”

There was already antagonism toward Ms Chrysanthou from Ten’s own legal team.

When Ms Wilkinson asked Ms McGarvey in one meeting what she had done wrong, the network boss allegedly told her she had done nothing wrong “but that I had chosen the ‘last lawyers in Australia’ that she wanted me to work with,” according to an affidavit filed by Ms Wilkinson.

When Ms Wilkinson asked if Ten would have paid the costs if she’d chosen a different team, the network boss said she “could not answer that.”

Ms Smithies recounts in an affidavit telling Mr Fordham that, had Ten been consulted, they would not have endorsed Ms Chrysanthou, who was “customarily a plaintiff, not a media defendant counsel, and routinely acts in opposition to the network and its interests.”

Ms Smithies added in her affidavit that her concerns included “a circumstance where Ms Chrysanthou cross-examined a junior lawyer at Network Ten who also undertakes clearance work for The Project, in my view to, to an extreme and unnecessary extent.”

In a further sign of tension among the lawyers, Dr Collins sent Thomson Geer lawyer Marlia Saunders an email in February last year about “a long (and heated) conversation” he had just had with Chrysanthou about her intention to cross claim against Ten, after it refused to indemnify Wilkinson.

“I explained at length and with increasing irritation why that would not be in anyone’s interests, particularly Lisa Wilkinson’s,” Dr Collins reported.

Dr Collins said he thought Ten had an obligation to pay any damages won by Lehrmann, but Ten was entitled to say that if Ms Wilkinson wanted separate representation “she can’t expect Ten to pay for it.”