Has Justice Michael Lee dropped the biggest clue about where his mind is at in Bruce Lehrmann’s mammoth defamation case against Network Ten and Lisa Wilkinson?
As Lee’s self-imposed deadline for a verdict looms later this month, or early next, it’s the topic currently occupying the minds of some of the country’s highest profile lawyers.
Three weeks ago Justice Lee emailed all parties to the case asking a very specific question.
What happens if he decides that Ten and/or Wilkinson’s defences have failed, but that no damages – or only nominal damages – should be awarded to Lehrmann?
If that was his verdict, Lee inquired, how should he approach the issue of aggravated damages? Aggravated damages are awarded to a plaintiff who has suffered increased distress as a result of the manner in which a defendant has behaved when committing the wrong or thereafter.
Trying to read the tea leaves in any defamation case is fraught, and perhaps more so in the case of Lee, who has been openly sceptical during the hearing about the evidence of both Lehrmann and Brittany Higgins, the two central witnesses in the case.
“It is clear that there are significant credit issues in relation to the two principal witnesses … certainly Mr Lehrmann and Ms Higgins,” he observed at one point. “Various parts of each witness’s evidence simply can’t be accepted.”
So Lee’s final decision may not be a black-and-white, winner-takes-all finding for one side.
And in any case, there are now very clearly three sides to this case, with Wilkinson pointing to evidence from her cross-claim against Ten for legal costs that she says lessens – or voids – her culpability in the network’s allegations and conduct towards Lehrmann.
If Lee finds himself unable to conclude, on the balance of probabilities, that Lehrmann raped Higgins on a couch in Parliament House, he will then have to decide whether the reporting and subsequent actions of Ten and Wilkinson were reasonable in the circumstances.
If he finds that either Ten or Wilkinson acted unreasonably, he may give judgment to Lehrmann.
But should Lee award him any damages – especially if he believes Lehrmann was lying in the witness box?
Lee raised the issue of aggravated damages after evidence in Wilkinson’s cross-claim revealed she was acting on Ten’s legal advice when she gave her infamous Logies speech. Not only had Ten failed to make that advice public, it had refused to waive legal privilege earlier in the defamation case, so Lee couldn’t see it either.
In his judgment in favour of Wilkinson, Lee noted he was “in the unusual situation of having some insight into how the sausage has been made”. He didn’t seem pleased about what he’d seen.
If Lehrmann won the case but Lee decided to give him nothing (or only nominal or “contemptuous” damages) what should he do if he nevertheless reached the conclusion that the conduct of Ten or Wilkinson “was sufficiently improper to amount to an aggravating circumstance”?
Lee’s question is not necessarily a pointer to the way he will decide the case. Defamation trial judges often give an indication as to how they would have approached damages in the event that the plaintiff was successful.
The judge might find against Lehrmann but still indicate what damages he would have awarded, so that, if his judgment is set aside on appeal, that issue does not have to be re-litigated.
The careful Lee may simply be covering all his bases. Some lawyers, however, think the evidence revealed in Wilkinson’s successful cross-claim against Ten wasn’t just helpful for the star’s bank balance.
They think it may have reshaped one fundamental issue in the larger defamation case about whether the network acted reasonably towards Lehrmann.
Would Lee be diving this deep into the weeds if he was simply planning to find on the balance of probabilities for Network Ten and Wilkinson?
“I don’t think he’d be so interested in getting that nailed down if he didn’t intend to get to damages at all,” says one lawyer.
“Aggravated damages are a super, over-the-top damages that you get on top of other damages and there’s much less imperative to talk about them in these circumstances,” suggests another lawyer. “Raising the question of aggravated damages seems inconsistent with a finding that Ten acted reasonably.”
Wilkinson’s legal team, led by Sue Chrysanthou SC, claims the new evidence shows its client acted reasonably even if Ten didn’t.
In her final submissions, Chrysanthou argued that, because it was now clear Wilkinson had relied on Ten’s legal advice on all aspects of the case, it “could hardly be described as reckless or improper”.
She said it was also clear that Ten’s senior lawyer, Tasha Smithies, “strongly held the view, as reflected in her advice to Ms Wilkinson, that Ms Wilkinson should give the (Logies) speech in the terms she spoke” – a claim Ten strenuously rejected in its own submission.
Lehrmann’s lawyers aren’t letting Wilkinson off the hook just because she was acting on Ten’s legal advice. That would “lessen her personal culpability” on the question of aggravated damages, they conceded, but “her actions remain ill-advised, reckless and prejudicial to (Lehrmann’s) right to a fair trial.”
Lee told the parties last month he “had not been idle” since Christmas, and had planned to deliver his decision this month. After the startling evidence from Wilkinson’s cross-claim, that verdict may be delayed until early April.
Whatever his final decision, it’s unlikely any of the parties will emerge from it completely unscathed. And highly unlikely the fastidious Lee will have left any room for a successful appeal.
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