Judge asks whether Higgins should be recalled over $2.4m compo evidence

The judge in Bruce Lehrmann’s defamation case has asked if Brittany Higgins should be recalled to give evidence over alleged ‘false representations’ in her $2.4m compensation payout.

Brittany Higgins outside a mediation hearing in Perth last week. Picture: Colin Murty

The judge in Bruce Lehrmann’s defamation case has sensationally asked whether Brittany Higgins should be recalled to give evidence about her $2.4m compensation payout, after the Ten Network suggested it would be unfair to her for the court to make findings about whether she had made false represent­ations to the commonwealth.

Justice Michael Lee emailed parties to the defamation case earlier this week after receiving a submission from Ten that allegations Ms Higgins had “committed a fraud on the common­wealth” should not be adjudi­cated in the case.

Mr Lehrmann’s lawyers had argued that Ms Higgins made 11 separate representations about her alleged rape in her settlement that were either false or contradicted by her own evidence in the defamation case.

Ms Higgins made false representation “for the purposes of securing a life-changing payment” and were a breach of the warranties made by her in the deed, Mr Lehrmann’s lawyers ­alleged.

Ten had argued it was not its responsibility to act in Ms Higgins’ interest over the allegations, but said Justice Lee “should not make very serious findings of the kind alleged against an unrepresented witness who has not been heard in respect of them”.

Justice Lee noted Ten’s submission seemed to suggest there would be a denial of procedural fairness if he “considered it necessary to make any finding as to whether false representations had been made in the deed because it is relevant to any general credit finding made in relation to Ms Higgins”.

In his email, released by the Federal Court on Friday, Justice Lee accepted he should not make any findings as to the legal characterisation of any false representations but wanted to know what Ten was suggesting if the submissions were about her ­credit as a witness. The judge expressed the view that recalling Ms Higgins was unnecessary but warned that “nothing in this email indicates a view, one way or another, as to the underlying merit of any credit submission based on the commonwealth deed”.

David Shiraz and Brittany Higgins.

In response, Ten barrister Matt Collins KC said it would be “inappropriate for this court to make any finding as to the characterisation of Ms Higgins’ conduct contended for by Mr Lehrmann – in substance that she was prepared to tell lies, including elaborate lies, in respect of matters that she warranted to be true and correct with the intention of inducing the commonwealth of Australia to enter into the deed which provided for the payment of a life-changing settlement sum”.

“It would be extraneous to the determination of the issues in this case to make any findings as to the legal characterisation of any findings of any false representations in the deed (should they be made)”, Dr Collins argued.

The representations in the deed could only be considered “as part of an assessment of the ­general credit of Ms Higgins in the limited relevant sense, which is in short whether it discloses a preparedness to tell lies on solemn occasions that infects the court’s assessment of the evidence she gave in this proceeding”.

Bruce Lehrmann outside court. Picture: NCA NewsWire / Monique Harmer

The majority of the inconsistent claims in the deed had been put to Ms Higgins in cross-­examination, so Ten did not consider it necessary to recall her to the witness box to provide her with procedural fairness, Dr Collins submitted.

Earlier this month, Mr Lehrmann’s lawyers set out a detailed comparison of the claims Ms Higgins made in the commonwealth deed with her evidence in the still-to-be-decided defamation case.

Among the claims made by Ms Higgins in the settlement deed, but disputed in a submission by Mr Lehrmann’s legal team, led by Steven Whybrow SC, were:

• That Mr Lehrmann got into Ms Higgins’ taxi on the night of the alleged rape without her agreement (she testified she had agreed).

• That he directed the cab to stop at Parliament House without her agreement (she gave evidence that she “just went along with it”);

• That he directed her to get out of the cab (she testified that “I don’t know why, but when it stopped I got out too”);

• That they didn’t speak on the Monday afterwards (they had coffee and exchanged emails).

Mr Lehrmann’s lawyers also point to claims made in the deed that have been strongly disputed in evidence, including that Ms Higgins told Fiona Brown – who was the chief of staff of Miss Higgins’ boss at the time, senator Linda Reynolds – that he had ­sexually assaulted her, an allegation that has always been vehemently denied by Ms Brown.

The settlement deed also stated Senator Reynolds did not ­engage with Ms Higgins at all during the election campaign. “She avoided (Ms Higgins) and made clear she did not want (Ms Higgins) attending events with her,” the settlement deed stated.

In fact, Ms Higgins was photographed seated next to Senator Reynolds during the election.

Giving evidence at the defamation trial, Ms Higgins said she was “accidentally” seated next to the then minister because she was one of the last to arrive.

The Albanese government paid Ms Higgins $2.445m in the settlement, which relied entirely on her version of events, after a single day ­of mediation that excluded evidence from Senator Reynolds.

Earlier this year, The Australian revealed that the National Anti-Corruption Commission was examining a complaint by Senator Reynolds against Attorney-General Mark Dreyfus over his handling of the Higgins settlement, to determine if an investigation should be launched.

Justice Michael Lee. Picture: Aaron Francis/The Australian