Lisa Wilkinson contests improper conduct finding from Bruce Lehrmann defamation trial

Lisa Wilkinson is sensationally seeking to overturn Justice Michael Lee’s finding, claiming the judge made more than 50 errors in Bruce Lehrmann’s failed defamation case.

Lisa Wilkinson, right, is appealing a finding from the Bruce Lehrmann defamation case. Picture: Getty Images

Lisa Wilkinson is sensationally seeking to overturn Justice Michael Lee’s finding that her conduct in the Brittany Higgins story was improper and unjustifiable, claiming the judge made more than 50 errors in Bruce Lehrmann’s failed defamation case against her and Network Ten.

In a notice of contention filed with the Federal Court on Wednesday Ms Wilkinson claims Justice Lee made multiple errors both in his findings about her conduct and about the rape of Ms Higgins by Mr Lehrmann.

In April, following a trial believed to have cost at least $10m, Justice Lee found that, on the balance of probabilities Mr Lehrmann had raped Ms Higgins in Parliament House in 2019.

However, he also found that Ten and Ms Wilkinson had failed in their defence of qualified privilege – that is, that they had failed to act fairly and reasonably in the preparation and aftermath of the story.

The judge declared that The Project’s former star presenter had demonstrated “a lack of candour” in the witness box and was highly critical of the program’s suggestion that the rape had been the subject of cover-up, hushed up to avoid a political scandal in the lead-up to a federal election.

Former parliamentary staffer Bruce Lehrmann. Picture: NewsWire / John Gass

Ms Wilkinson’s surprise move is in stark contrast to her declaration outside the court after the verdict that she hoped the judgment “gives strength to women around the country”.

In the notice of contention filed by her barrister, top defamation silk Sue Chrysanthou SC, Ms Wilkinson says that while Justice Lee correctly found that the defence of justification (or truth) had been made out, he should have also made findings that Mr Lehrmann “had knowledge” of Ms Higgins’ lack of consent.

In his judgment Justice Lee simply found that Mr Lehrmann was “indifferent” to her consenting.

Ms Wilkinson also claims that Justice Lee should have upheld her defence of qualified privilege and had “erred generally in taking account into matters outside the scope of the relevant inquiry”.

Ms Wilkinson said the judge had erred in rejecting testimony from her that was unchallenged and that supported the reasonableness of her conduct, including the fact that she had relied upon trusted producers and lawyers.

Justice Lee had failed to give sufficient weight to her “unchallenged experience with sexual assault survivors”; her knowledge that Ms Higgins had made contemporaneous complaints about a sexual assault; and that she believed Mr Lehrmann had been given sufficient opportunity to respond to the allegations before they were broadcast on The Project.

Ms Wilkinson claimed Justice Lee had erred in making findings about the “bruise photo” – a photograph of a bruise on her leg that Ms Higgins had at first claimed was evidence of the rape but later acknowledged could have been the result of a fall.

Justice Lee had “failed to have regard to Ms Wilkinson’s evidence that she had further discussions about the reliability of the ‘bruise photo’ and was informed that the issue had been addressed”.

In dispelling claims that police had been denied access to CCTV footage from Parliament House, Justice Lee had referred in his decision to the unique arrangements which gave parliamentary officials powers over such material.

Ms Wilkinson said the judge had erred “in taking into account his personal opinions about constitutional arrangements relating to parliamentary policing in judging the state of mind, conduct and therefore the reasonableness of the respondents”.

“His Honour erred in finding that (Ms Wilkinson) did not ascertain or appreciate when and why Ms Higgins put a stop to the investigation and the availability of the CCTV footage.”

The judge should also have recognised that Ms Wilkinson was directed by Ten not to have any direct engagement with Ms Higgins, who dealt largely with Ten producer Angus Llewellyn via her partner, David Sharaz.

Justice Lee had also erred in “conflating information (Ms Wilkinson) had at the time of broadcast with the evidence before the court”.

Mr Lerhrmann has also lodged an appeal against Justice Lee’s decision.