‘Liar’ Lehrmann cops most of Ten and Lisa Wilkinson’s legal bill
As a judge slates Network Ten for its journalism and post-trial conduct, attention turns to whether Bruce Lehrmann can pay a giant looming legal bill.
Bruce Lehrmann has been ordered to pay the vast majority of Network Ten and Lisa Wilkinson’s whopping costs after unsuccessfully suing them for defamation.
Justice Michael Lee said Ten’s journalism was unreasonable and unjustifiable. But he slated Lehrmann’s lies and his decision to have lawyers cross-examine a rape victim, knowing she was telling the truth.
Lehrmann’s case ‘fanciful and knowingly false’
“Mr. Lehrmann had sexual intercourse with Miss Higgins, and yet ran a primary case premised upon the fanciful and knowingly false presence premise that — in the early hours of 23rd March, 2019 — he was preoccupied with noting up details as to French submarine contracts,” Justice Michael Lee said in handing down his costs judgement on Friday.
“As I said, Mr. Lehrmann defended the criminal charge on a false basis, lied to police, and then allowed that lie to go uncorrected before the jury.
“He wrongly instructed his senior counsel to cross-examine a complainant of sexual assault in two legal proceedings, including relevantly for present purposes, in this case, on a knowingly false premise.
“Indeed, this was misconduct in the running of the case of such a character that even if I had not reached the level of satisfaction that Mr. Lehrmann raped Miss Higgins and Mr. Lehrmann was therefore entitled to judgement of $20,000, in the counterfactual explaining the Judgement, I would have declined to award costs in Mr. Lehrmann’s favour.
“This would have been the appropriate exercise of discretion in circumstances, given Mr. Lehrmann had acted in serious breach of his obligations under part 5B the Federal Court of Australia Act in advancing a case he knew was false and which occasioned much delay, inefficiency and increased cost.”
Justice Lee said he hopes these are some of his final words on the matter that has gripped Australia over four years: the claim that Bruce Lehrmann raped Brittany Higgins on a sofa in federal parliament House.
The judge has already found, on the balance of probabilities, that Lehrmann did rape Higgins. Lehrmann’s indicated he may appeal.
Lehrmann ordered to foot Ten’s legal bill
Lehrmann is facing an immense legal bill – because the judge has ordered him to hand Network Ten and its journalist Lisa Wilkinson what’s likely to be millions of dollars to pay their lawyers.
Lehrmann’s own lawyers up till now have been working on a no-win, no-fee basis, and won’t get paid because they lost. The lawyers earlier this week told the court Lehrmann does not have a secret financial backer out there paying his bills.
He likely does not have millions of dollars lying around. This decision may bankrupt him. And given he now has new lawyers who may not be working no-win, no-fee, it could make an appeal less likely.
Lee’s scathing last words
“There are no real winners in this litigation,” Justice Lee said at the outset of Friday’s hearing.
Something that’s been grinding his gears about the epic legal storm surrounding Bruce Lehrmann and Brittany Higgins is the way – he says – everyone only hears what they want to hear.
“With the predictability of an atomic clock, partisans have focused solely on those parts of the Judgement that happened to align with preconceived notions.
“But the reality of mixed findings has been somewhat obscured in the public statements of the respondents in their submissions as to costs, which advanced an assertion that they won the litigation and that costs should axiomatically follow the event.”
Here’s what he means: Ten won the case, yes. But it wasn’t a total win — and they shouldn’t assume they get to force Bruce Lehrmann to pay all their legal costs.
Why did Bruce Lehrmann sue Network Ten?
Bruce Lehrmann sued Network Ten and its presenter Lisa Wilkinson over the bombshell 2021 story on The Project in which Brittany Higgins told her emotional story of being raped by Bruce Lehrmann, and then despairing as – she claimed – her bosses failed to act.
Lehrmann said he never had sex of any kind with Higgins – and that when the pair came back to Parliament House one autumn night in 2019 after a big night of drinking, he went to his desk and made some notes about French submarine contracts.
Ten and Wilkinson had two defences: first, that Brittany Higgins’ claim of being raped was true and, second, that their story was covered by statutory qualified privilege: that’s a rule designed to protect well-intentioned, careful journalism.
The qualified privilege defence means a publisher has to prove that they made all reasonable efforts to ensure the publication was true.
In his judgment, back in April, Justice Lee found Ten and Wilkinson had successfully proven the truth of the rape on the balance of probabilities, which is the standard in civil cases like this.
But he said Ten had failed on the qualified privilege defence.
“I explain why the conduct of both Network Ten and Ms Wilkinson, in publishing The Project program … was unreasonable,” Justice Lee said.
“Contrary to the assertions of Network Ten, the examination of the respondents’ conduct was not devoid of, nor divorced from reality, nor did it involve picking apart and dissecting the respondent’s conduct by reference to a standard of perfection.
“For anyone taking the trouble to read the Judgement would conclude that I did not consider the event with the assessment required by the statutory qualified privilege defence to be a close run thing.”
That there is a big swipe at Network Ten over something else that has made the judge very cranky – the statements made on the court steps and after the trial by Justin Quill, a representative of Ten’s law firm.
“In terms of Channel 10’s reasonableness, look, the way in which judges and barristers – and this is the problem with defamation law in Australia – the way in which judges and barristers pick apart and dissect what journalists did or didn’t do in applying a legal threshold, a legal test of reasonableness, is quite often divorced from reality.”
Justice Michael Lee said on Friday:
“I also explain that, although the respondents legally justified the imputation of rape, their conduct was not justifiable in any broader sense.
“The material in evidence is replete with the recognition by The Project team that the major theme of the broadcast was the publication of what Mr. Sharaz, the promoter of that project and the regular conduit between Miss Higgins and Mr. Llewellyn, had pitched to Mr. Wilkinson.
“The credulous approach taken as to the allegations pitched by Mr. Sharaz, and as to Miss Higgins’ credit generally, lacked both rigour and objectivity.
“Contrary to the recent assertions of Network Ten, a publication is not reasonable simply because it turns out to be true in some respects.”
What’s David Sharaz got to do with it?
Mr Sharaz is Brittany Higgins’ fiance. He pitched the story to Lisa Wilkinson by email under the heading ‘Liberal Party Me Too Project Pitch’.
He told Wilkinson it was a story of a young rape victim being silenced by Scott Morrison’s federal government. That’s something the judge said was not borne out by the facts – he found that, in fact, minister Linda Reynolds and her chief of staff Fiona Brown had not tried to cover up the rape or pressure Higgins into silence.
Ten tried to argue in its submissions that it wasn’t claiming there was a cover-up, just that Brittany Higgins said so.
Here’s what the judge said about that – and it relates to the way he says Ten and its supporters have crowed about their victory.
“The result is best characterised as the respondents overcoming a misconceived claim in relation to a broadcast, because they were able to prove at trial the substantial truth of what the contemporaneous material demonstrates that they considered to be the less substantial allegation made in the broadcast.”
In other words, the judge says Ten’s chosen to ignore the fact they did present this as a cover-up, and that just wasn’t true.
The judge said, even though Ten and Wilkinson’s barristers had made very learned submissions, there was no hiding the fact that Lisa Wilkinson and producer Angus Llewellyn wholly believed Brittany Higgins’ story and didn’t do enough to establish whether it was true.
“This is a case where extensive contemporaneous records demonstrate a very large gulf between the carefully drafted respondent’s affidavits and the true position as to the immediate and unquestioning belief in Ms Higgins’ account by Mr Lewellyn and Ms Wilkinson.
“And, as to The Project team’s lack of interest in examining the account properly or obtaining contrary accounts.”
The judge is going through this because Lehrmann’s lawyers sought to argue that, because Ten lost on the qualified privilege defence, Lehrmann should not have to pay Ten’s legal bills for preparing and running that defence.
Ultimately, the judge didn’t agree with that argument – he said the two defences were bound up together, even if he had serious problems with Ten’s journalism.
“One cannot ignore the fact that the relevant conduct of Network ten, relating to the publication of The Project program was far from reasonable, and the statutory qualified privilege case, while not hopeless, was weak,” he said.
Lisa Wilkinson’s Logies speech gets scorched
The judge’s other big problem with Network Ten’s behaviour was about the Logies speech made in 2022 in which Lisa Wilkinson declared:
“After 40 years in journalism, this interview and this story is by far the most important work I have ever done, and I knew it from the very first phone call I had early last year with a young woman whose name she told me was Brittany Higgins.”
That was eight days before Bruce Lehrmann was supposed to face the ACT Supreme Court in a criminal trial for rape – at which Wilkinson was supposed to be a witness.
A furious judge delayed the trial because of the speech.
Ultimately the trial was aborted without any finding of guilt against Lehrmann.
The judge said the Logies speech was grossly improper – and he’s slated Ten for approving it and continuing to defend it in this defamation trial.
And this brought him back to Justin Quill’s statement on the court steps, and subsequent interviews where he defended Ten’s journalism.
“Following the delivery of judgement, however, a solicitor spokesman retained on behalf of Network Ten made what might be described as a victory tour and expressed public comments relevant to the relevant findings, and repeatedly expressed the view the Logies speech not only did not have the tendency to unify with the administration of justice, but presented no difficulty whatsoever.”
If you’ve been listening to The Front you’ll know the judge demanded an explanation from Ten. He wanted to know if Ten thought the Logies speech was still a good idea, despite the fact he’d slated it in his judgement.
This was high-stakes stuff for Ten. The risk was that, if the judge was sufficiently annoyed, he could throw out Ten’s costs claim altogether, and it’d be left footing its own bill.
Ten and its lawyers humbly asked the judge for forgiveness, saying the remarks were off-the-cuff and unintentional – and that Ten takes its legal obligations very seriously.
“After these issues were raised, further affidavits and submissions explaining the considered and current view of Network Ten were provided to the court,” Justice Lee said on Friday.
“This material suggests that, Saul of Tarsus-like, the scales of belatedly fallen from the anthropomorphic eyes of Network Ten, in the circumstances, no further comment or action from this court is necessary or appropriate.”
So, he’s given them a scare and will leave it there.
Saul of Tarsus, by the way, also known as Paul the apostle, who was cured of blindness when scales like that of a fish fell from his eyes and he could suddenly see everything clearly.
What about Lisa Wilkinson’s legal bills?
One of the sideshows that has occupied Justice Michael Lee’s time during this trial was a costs dispute between Lisa Wilkinson and her employers, Network Ten.
That’s still raging, by the way – and will be determined by an independent referee, who’ll decide how much everyone’s bills are, and who pays what, later this month.
But it’s thanks to that cross-claim that the court heard a large amount of evidence about what was going on within Network Ten as its relationship with its star, Lisa Wilkinson, deteriorated.
The Logies speech cost Lisa Wilkinson her role on The Project.
In November 2022, she made an emotional exit, positioning it as her decision, rather than Ten’s.
“I have had a ball, but for me, right now, it’s time for a change,” Wilkinson said in the broadcast.
“To be clear, I’m not leaving ten and we’re looking at some very exciting work on days ahead. But also, I have to be honest with you: the last six months have not been easy, and the relentless, targeted toxicity by some sections of the media has taken a toll not just on me, but on people I love.”
Hiring Wilkinson had been a major coup for Ten back in 2017, because Wilkinson – the popular long-term co-host of rival network Nine’s Today breakfast program – had quit Nine on a point of principle: she wasn’t earning as much as her male co-host Karl Stefanovic.
Wilkinson then brought in the Higgins story.
It had been broken earlier that day by Samantha Maiden of news.com.au, but The Project had Higgins on camera.
It was a ratings success that turned into a social juggernaut, as Higgins’ story captivated Australians angry about violence against women.
But the Logies speech – which should have been a jewel in Ten’s crown – turned sour when the ACT judge reacted with such fury and delayed the trial.
Wilkinson has not returned to an on-air role, even though she’s still employed by Ten.
Documents tendered to court Wilkinson felt abandoned and betrayed by Ten. She insisted Ten and its lawyers had approved the speech and even asked her to make it as a deliberate show of support for Brittany Higgins.
Wilkinson was right, and part of Ten’s humiliation in this trial was that its treatment of Wilkinson was laid bare.
Why Brittany Higgins’ lawyer argued against Sue Chrysanthou
When Bruce Lehrmann first indicated he was suing, Lisa Wilkinson hired her own solicitors and barrister – prominent senior counsel Sue Chrysanthou – and that turned into another dispute with Ten.
Buried in all the documents that surfaced in the cross-claim – but found by Justice Lee – was an unusual request from Brittany Higgins’ solicitor, Leon Zwier, well before this trial kicked off.
“It is important for your client(s) to appreciate that Brittany is doing so 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,” Zwier wrote.
“For the avoidance of any other misunderstandings, Brittany has instructed me not to assist lawyers and Counsel currently retained by Lisa Wilkinson to defend civil claims commenced by Lehrmann against Lisa Wilkinson.
“I am not prepared to work with Lisa’s current senior counsel, under any circumstances.”
There’s a complicated backstory. Chrysanthou had briefly acted for Brittany Higgins in the past briefly, but some of her other prominent cases had included acting for Geoffrey Rush – the actor who successfully sued for defamation over sexual harassment claims – and former attorney-general Christian Porter, who also faced unproven claims of sexual misconduct.
But there’s a rule barristers have to act for any client that asks – unless they’ve got a conflict of interest or are already engaged.
So the judge came in strongly on the side of Chrysanthou.
He noted that, after Leon Zwier’s email, Ten did make Lehrmann an offer to settle, but it didn’t include any damages or apology – just as Higgins had requested.
The judge also noted Ten’s boss, Beverley McGarvey, had repeatedly tried to get Lisa Wilkinson to drop Sue Chrysanthou and the solicitors Leon Zwier had objected to.
Ten denied they had acted on the demands in Leon Zwier’s letter.
The judge found that curious.
“By reason of the fact that Miss McGarvey, on behalf of Network Ten, at least twice, explicitly referred to the conditions as a reason why Ms Wilkinson should replace her chosen senior counsel, it appeared to me available to infer that what might be thought to be the appropriate response to Ms Higgins’ solicitor was not conveyed,” the judge said.
“That would have been to say with respect that if Ms Higgins did not wish to co-operate with Network Ten without imposing conditions upon representation of a party and potential settlement options, then Ms Higgins will need to be subpoenaed, and she’ll be obliged to assist the Court of Justice in coming along to tell the truth until excused.”
Ultimately the judge said he accepted the reassurances of Ten’s counsel, Matt Collins KC, that Ten had not felt itself bound by the Zwier letter.
Where it all shakes out
Here’s what the judge ultimately ruled:
Ten and Wilkinson can recover costs from Lehrmann on an indemnity basis. That means the vast majority of the bill. But that only applies to the truth defence, which they won.
On the other defence — qualified privilege — Ten and Wilkinson can recover costs on an ordinary, or party-to-party basis, which means about 70 per cent of its costs.
There are a couple of exceptions, but it’s the best result Ten and Wilkinson could have hoped for.
So, what next?
The matter comes back to court on May 27, when the judge will decide the terms of reference for the referee who’ll sort out exactly how big the bills are – and who pays what.
And then it was over, but for one last Michael Lee mic drop.
“I publish my reasons. Call the next matter.”
This is an edited transcript of The Australian’s daily news podcast, The Front. Listen wherever you get podcasts.
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