Lisa Wilkinson should still be liable for defamation costs despite win in Bruce Lehrmann case, says Ten

Network Ten says Bruce Lehrmann should have to pay the highest possible legal costs – but if he can’t, Lisa Wilkinson should be liable for the ‘wasteful’ costs of her separate legal team.

Bruce Lehrmann and Brittany Higgins.

Lisa Wilkinson may end up footing a large chunk of her enormous legal bill in Bruce Lehrmann’s defamation case after the Ten Network told a judge she should be liable for any “duplicative or wasteful” work by her expensive legal team.

The network has argued in a submission to Justice Michael Lee that Mr Lehrmann should pay all of its costs in his failed defamation hearing because his actions in bringing the proceedings were “deliberately wicked and calculated” and he had snubbed an early offer to “walk away” from the case.

But Ten says if the unemployed Mr Lehrmann can’t pay the expected costs of the action, which could top $10m, then Wilkinson should be required to pay her share for all aspects of the case where it wasn’t necessary for her to have separate representation.

After a successful cross-claim by Wilkinson, Ten agreed to pay “reasonable” costs for her team, which was led by top defamation silk Sue Chrysanthou SC.

In October last year, those legal costs had already exceeded $700,000.

But in submissions released by the court on Tuesday, Ten’s barrister Matt Collins KC argued Wilkinson “was not entitled to incur costs in respect of her separate interests as she pleased on the assumption that Network Ten would ultimately pick up the bill”.

“To the extent that Ms Wilkinson incurred costs in an unnecessarily duplicative or wasteful manner, Network Ten submits that the indemnity does not require it to reimburse Ms Wilkinson for those costs,” Dr Collins submitted.

Ten proposed a referee should be appointed to examine whether Wilkinson’s costs “were reasonably incurred”.

Dr Collins agreed Wilkinson had legitimate “separate interests” in relation to her Logies speech and questions around whether she had acted reasonably in preparing and broadcasting the story, but said other aspects of the case, such as the truth defence, involved “common interests” which were almost entirely handled by Ten’s legal team.

In his judgment handed down last Monday, Justice Lee found the media organisation had made out its truth defence in its defamation battle with Mr Lehrmann, ruling that on the balance of probabilities the former Liberal staffer had raped Ms Higgins.

Mr Lehrmann submitted he should have to pay “only a proportion” of legal costs in the action because Justice Lee found some of Ten’s conduct to be “grossly improper and unjustifiable” and that both the network and Wilkinson had failed to establish their qualified privilege defence.

“It may be an appropriate exercise of this court’s discretion to recognise the ‘success’ the respondents have enjoyed but, due to their failure with respect to the qualified privilege defences, temper that success by ordering that the applicant pay only a proportion of the respondents’ costs on the ordinary basis,” Mr Lehrmann submitted.

At the same time, Mr Lehrmann accepted that it was also open to Justice Lee to order that he pay the legal costs on “an indemnity basis” – a much higher proportion of costs – as Ben ­Roberts-Smith was forced to do in his high-profile failed case against Nine newspapers over allegations of war crimes.

Barrister Sue Chrysanthou KC, left, and Lisa Wilkinson. Picture: AAP

In that case, Justice Anthony Besanko found that Mr Roberts-Smith knew from the commencement of the proceedings “that the most serious imputations were substantially true”. However, Mr Lehrmann argued that was not the case in his lawsuit, where Justice Lee had found that none of Ten and Wilkinson’s qualified privilege defences were successful.

Mr Lehrmann conceded he might be liable for a higher level of costs after it was revealed that he refused an offer to settle the case before it proceeded to trial.

On August 31, 2023, Ten and Wilkinson made a “walk away” offer to Mr Lehrmann, with no apology offered, which he rejected less than two hours after it was made.

Ten argued that Mr Lehrmann “brought this proceeding on a deliberately wicked and calculated basis. He put Network Ten to the cost of defending this proceeding, which can be, with the benefit of hindsight, described as a clear abuse of process aimed at concealing the truth that Mr Lehrmann raped Ms Higgins,” Dr Collins submitted.

Ten said that despite some “strong indications of the unreliability of their main source”, the Project team were correct to believe Ms Higgins’ core allegation as to the rape.

“Indeed, Lee J came to the same conclusion as Network Ten as to the credibility of Ms Higgins’ description of the sexual act, ­despite (in his Honour’s words) ‘all my reservations as to the credibility and reliability of Ms Higgins’, principally because her evidence of the sexual act ‘struck me forcefully as being credible and as having the ring of truth’.”

After criminal proceedings against him were abandoned, Mr Lehrmann had brought the defamation action “gambling on the respondents not being able to discharge their burden of proof in respect of a matter that, in view of the outcome, he must be taken at all times to have known to be true”, Dr Collins said.

Wilkinson said in her submission, prepared by Ms Chrysanthou, that Mr Lehrmann should pay all her costs because he had elected to sue her personally, “a litigation choice made by him”.

“That decision had been made deliberately despite it being public knowledge Ms Wilkinson ceased being a host of the Project some months before the commencement of the proceedings and he was aware that there was no financial benefit in doing so given that Ten was vicariously liable for the conduct of Ms Wilkinson.”

Mr Lehrmann had “pleaded a serious allegation that Ms Wilkinson was recklessly indifferent to the truth or falsity of the rape imputations”. In regard to Ten’s liability to cover Wilkinson’s costs, Ms ­Chrysanthou submitted that her client had “not engaged in any ­disentitling or unreasonable conduct” in incurring the costs of her own lawyers.