Lisa Wilkinson’s fresh bid to overturn Logies findings

The veteran television presenter has lodged new submissions challenging aspects of Federal Court judge Michael Lee’s landmark defamation judgment against Bruce Lehrmann.

Former Ten presenter Lisa Wilkinson.

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Veteran television presenter Lisa Wilkinson has challenged a finding that she failed to prove she acted reasonably when airing an interview on The Project with Brittany Higgins in which the former Liberal staffer detailed rape claims against her colleague, Bruce Lehrmann.

In new submissions, Wilkinson’s lawyers also claim Federal Court judge Michael Lee erred in finding a Logies speech she delivered ahead of Mr Lehrmann’s criminal rape trial could entitle him to aggravated damages.

Justice Lee last year handed down his landmark judgment in a defamation case brought by Mr Lehrmann against Network 10 and Wilkinson, finding, on the balance of probabilities, Mr Lehrmann sexually assaulted Ms Higgins in Parliament House.

Mr Lehrmann is appealing Justice Lee’s judgment and maintains his innocence.

In a notice of contention filed under the appeal, Wilkinson’s lawyers argued she and her “expert news and current affairs television production team” treated Mr Lehrmann reasonably in The Project broadcast, for reasons including that he was not named and was given a detailed list of questions before the broadcast.

They claim that because of this, if the Federal Court of ­Appeal overturns Justice Lee’s findings on Ten and Wilkinson’s truth defence, it should uphold her s30 qualified privilege defence.

“Wilkinson was part of an expert news and current affairs television production team who, shortly after the allegations were exposed in the (news.com.au) Maiden article, presented to their audience Ms Higgins in person, enabling viewers to assess the credibility of her claims for themselves,” the submissions read.

“By this time the allegations were public, although Mr Lehrmann was not publicly named. Each person affected by the broadcast was sent detailed questions and their responses were ­included in the broadcast or otherwise presented in full on the website.

“Some of those persons had already made public statements giving their own versions before broadcast.”

The lawyers claim Justice Lee was correct to identify that a “publisher can publish untrue material but still act reasonably”.

Federal Court judge Michael Lee. Picture: Britta Campion

Therefore, they argued, it was “unrealistic” to expect journalists to be “held to account as though they were a judge, a prosecutor or even a police officer making a decision to charge”.

“News and current affair journalists operate in an environment whereby their sources and information are weighed and used depending on the nature of the allegations, the identity of the sources, their belief in the truth, and their attempts to obtain a response from the person accused,” the submissions read.

The lawyers also claimed Justice Lee erred when finding Wilkinson’s speech at the Logies – which saw Mr Lehrmann’s criminal trial delayed by three months – was “improper and unjustifiable such as to warrant an award of ­aggravated damages”.

Justice Lee, in handing down his judgment, found Wilkinson had “less culpability than those encouraging her to make the speech” because she “at least had the insight to seek advice” from lawyers beforehand.

However, Wilkinson’s lawyers in their submission claim Justice Lee made an error when finding Wilkinson was “vexed and reticent” to give the speech.

“On this appeal, for the avoidance of any doubt, Wilkinson submits that being nominated by her employer to give a speech in front her peers accepting a Logie award on behalf of her employer and colleagues was an incredible honour,” the submissions read.

“The primary judge erred in finding that an employee journalist, who sought and received firm legal advice (more than once) about the contents of a televised speech she was directed to give on behalf of her employer was improper and unjustifiable such as to warrant an award of aggravated damages.”

In a submission from his solicitor, Zali Burrows, Mr Lehrmann argues in his appeal the case pleaded by Ten is very different from the case found by Justice Lee. Ms Burrows argues Ten claimed the case involved “forceful sexual intercourse” but the case found by Justice Lee involved no force, and that Ten had claimed Mr Lehrmann knew Ms Higgins was too intoxicated to consent, but the judge made no such finding.

“The fundamental error … was that the judge had regarded himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other as virtually impossible, and failed to consider the third possibility which was open to him, of simply finding the claimant’s case not proved.”