The affidavit Auerbach has given the Ten Network is likely to be explosive. It may well put Lehrmann back in the witness box.
It may lead to possible contempt allegations against the former Liberal staffer – and may damage the reputations of some of Auerbach’s former colleagues at Seven, who he has well and truly thrown under the bus.
But it is unlikely to blow up the defamation case.
The clue: Lee has not changed the date of judgment day. His verdict in the case is still listed for Thursday. He’s already read Auerbach’s affidavit; he insisted on it before agreeing to the interlocutory hearing. That move could suggest that – whatever claims Auerbach has made about Lehrmann – Lee doesn’t think they will significantly alter his pre-written judgment.
In a case of this magnitude, where Lee’s detailed reasons may take up a hundred pages or more, the preparation and proofreading of his judgment – which will be put online immediately after he delivers it in court – will already be well under way or already complete.
If the new evidence was going to completely counter his findings, he would have to substantially revise his judgment – and probably delay his delivery of it. The fact that he hasn’t pushed the date back also suggests he has already made some findings adverse to Lehrmann.
It doesn’t mean he’s found in favour of Channel 10 but it probably means he’s found that Lehrmann is an unreliable witness. If he had found Lehrmann was an entirely reliable witness and that the alleged rape of Brittany Higgins didn’t happen, the Auerbach allegations would be a gigantic spanner in the works. The fact that Lee hasn’t delayed his verdict suggests the claims are at least in part consistent with his findings.
Several lawyers to whom The Australian spoke said the chance of Lehrmann getting a substantial award of damages has shrunk considerably if Lee gives credence to the Auerbach allegations.
However, they caution there is still a good chance that Lee finds Higgins was also an unreliable witness and that he can’t be satisfied that a rape occurred. Technically, Lehrmann could win if the judge also decides that Ten didn’t win its argument of qualified privilege – in other words, couldn’t show that it acted fairly and reasonably in its journalism.
But Lee could award negligible damages if he found Lehrmann had lied about there being no sexual contact at all.
Lehrmann has previously given evidence that he didn’t give the Spotlight program any of the controversial material it used in its program, including recordings of a five-hour pre-interview meeting between Lisa Wilkinson, her producer Angus Llewellyn, Brittany Higgins and her partner David Sharaz.
The recording was highly embarrassing for Ten and Wilkinson, with the TV presenter heard describing former defence minister Linda Reynolds as “a nobody” and an “idiot”, as the group workshopped which “friendly” Labor politicians would push the story and put the Morrison government under pressure.
Evidence obtained by police during an investigation is provided to the defence on the understanding that it is not to be used beyond the scope of the criminal trial, a rule known as the Harman undertaking. Lehrmann has given sworn evidence he didn’t give Seven the recordings or any other material from his criminal trial, including texts between Higgins and Sharaz, and CCTV of Higgins and Lehrmann arriving at Parliament House on the night of the alleged rape.
On November 28 last year, Lehrmann was asked in cross examination by Wilkinson’s barrister, Sue Chrysanthou SC, about his contract with Seven, which required him to “give all information, documents, film, video, photographs, items and assistance reasonably requested by Seven”.
“And did you do so?” Chrysanthou asked.
“No, I just gave an interview,” Lehrmann replied.
However, it is believed that Auerbach’s affidavit claims Lehrmann was the source of the material.
Auerbach was the producer assigned to obtain the exclusive interview for the Spotlight program in 2022, with documents in Lehrmann’s defamation case later revealing the Seven Network had agreed to pay his ongoing accommodation costs for a year.
It has since been alleged Auerbach used Seven’s corporate credit card to spend thousands of dollars on Thai massages for himself and Lehrmann – claims Lehrmann denies.
The judge will have to determine whether the Auerbach allegations are material enough to the defamation case to reopen the proceedings.
That means not just whether the claims affect Lehrmann’s credit but to what extent a breach of the Harman undertaking – if Lee finds that is what happened – interferes with the administration of justice.
Ten claims Lehrmann’s action – as alleged in the Auerbach affidavit – were an extreme abuse of process. Lee can’t just accept Auerbach’s affidavit. He would have to allow Lehrmann to be recalled to the stand to give evidence on it. Auerbach would then have to go on the stand and be cross-examined.
Lehrmann is likely to be in court on Tuesday afternoon as he has been for almost every day of the proceedings, sitting alone beside the window.
Having lobbed his grenade into the proceedings, Auerbach may not be there to watch it explode: it is understood he made and signed his affidavit over Easter while in New Zealand.
Lehrmann has the option of declining to answer on the grounds that he might incriminate himself.
Seven was understood to be considering whether to seek leave to appear in Tuesday’s hearing, but lawyers told The Australian the network would have little chance of suppressing the affidavit. Lee has made it an article of faith that he wants every element of the case played out in full view of the public, so that there can be no misunderstanding about the evidence.
If Lee finds the allegations to have any possible merit after hearing Lehrmann’s response he could refer the matter to the Director of Public Prosecutions to consider a contempt of court investigation. Contempt of court is generally a criminal matter and can result in jail.
An initial criminal trial into Higgins’ rape allegations against Lehrmann was discontinued after juror misconduct. In December 2022, prosecutors dropped the charges against Lehrmann.
Israel takes out Iran’s military chief Military chief taken out as Trump steps up pressure
Israel says it has killed Iran’s top military commander as the nations’ escalating war prompted Donald Trump to leave the G7 summit early and call for Tehran’s evacuation.
US need for sub base should outweigh pact fears: Cook
WA Premier Roger Cook says Australia’s role in the global nuclear submarine supply chain should help counter any US fears about the usefulness of AUKUS.
Justice Michael Lee may have trailed a big clue about what’s going to happen when he reconvenes Bruce Lehrmann’s defamation trial on Tuesday to hear new evidence from disgruntled former Seven producer Taylor Auerbach.