Judge drops $6m legal bill on Bruce Lehrmann

Federal Court judge Michael Lee launched a scathing attack on Ten and Lisa Wilkinson for lacking ‘rigour and objectivity’ over Brittany Higgins’ rape allegations.

Bruce Lehrmann outside the Federal Court in Sydney.

Federal Court judge Michael Lee has launched a scathing attack on Ten and Lisa Wilkinson for lacking “rigour and objectivity” when interrogating Brittany Higgins’ rape allegations, despite ordering Bruce Lehrmann to pay most of the broadcaster’s legal fees for knowingly launching dishonest defamation proceedings.

Justice Lee on Friday criticised the former Liberal staffer for bringing a defamation matter based on a “fanciful and knowingly false premise” and, as such, ordered him to pay the rumoured $6 million legal bills of both Ten and Wilkinson.

But Justice Lee also criticised the network, claiming its conduct was “not justifiable in any broader sense” especially in the “credulous” approach it took to Ms Higgins’ rape allegations as communicated by her partner, David Sharaz.

The long-awaited judgment of the matter brought against Ten and Wilkinson by Mr Lehrmann was handed down last month, finding Ten successfully made out its truth defence and proved, on the balance of probabilities, that Mr Lehrmann raped Ms Higgins in the office of Liberal senator Linda Reynolds.

However, Justice Lee found the network failed to make out its qualified privilege defence and acted unreasonably in its treatment of Mr Lehrmann when airing an interview on The Project with Ms Higgins, in which she detailed her rape allegations but did not name Mr Lehrmann as her attacker.

Justice Lee on Friday ruled the broadcaster could recover costs from Mr Lehrmann on an indemnity basis – covering about 90 per cent of its legal bill – in relation to its truth defence, and on an ordinary or party-party basis – about 70 per cent of its legal bill – in relation to its qualified privilege defence.

He made an award in the same terms for Wilkinson.

Sue Chrysanthou SC hugs Lisa Wilkinson as they emerge from the Federal Court in mid-April.

Justice Lee criticised Mr Lehrmann for running “a primary case premised upon the fanciful and knowingly false premise that in the early hours of 23 March 2019, he was preoccupied with noting up details as to French submarine contracts” when he was instead raping Ms Higgins.

“Mr Lehrmann defended the criminal charge on a false basis lied to police and then allowed that lie to get one corrected before the jury,” Justice Lee said.

“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.”

While Mr Lehrmann had argued the broadcaster’s inability to prove it had acted reasonably in its interview with Ms Higgins on The Project should reduce the proportion of costs it is ordered, Justice Lee disagreed.

“I’ve concluded the issues of the statutory qualified privilege defence were not sufficiently severable from other aspects of the case such as to make it appropriate to deprive Network 10 of its costs of this aspect of the proceeding entirely,” he said.

Justice Lee opened his judgment on Friday declaring there were “no real winners” in the defamation action, and criticised the broadcaster for advancing “an assertion that they won the litigation” in the aftermath of the judgment.

“Of course, with the predictability of an atomic clock, partisans have focused solely on those parts of the judgment that happen to align with preconceived notions. But the reality of mixed findings has also been somewhat obscured in the public statements of the respondents and their submissions as to costs, which advance the assertion that they ‘won’ the litigation and that costs should axiomatically follow the event,” Justice Lee said.

He continued: “Although the respondents legally justified the imputation of rape, their conduct was not justifiable in any broader sense.”

He criticised the “credulous” approach of The Project team in believing Ms Higgins’ rape allegations when they were presented to them by Mr Sharaz.

“The material in evidence is replete with recognition by the Project team that the major theme of the broadcast was the publication of what Mr Sharaz (the promoter of the “Project” and the regular conduit between Ms Higgins and Mr Llewellyn) had pitched to Ms Wilkinson,” he said.

“The credulous approach taken as to the allegations pitched by Mr Sharaz – and as to Ms Higgins’ credit generally – lacked both rigour and objectivity. None of this can be separated from the approach taken to the publication of the imputation of rape on the material then in the possession of the respondents. Contrary to the recent assertions of Network 10, a publication is not reasonable simply because it turns out to be true in some respects.”

Justice Lee earlier this month indicated he would consider whether the conduct of Ten’s lawyers in the wake of the judgment would have an ­impact on who pays what.

He took aim at Ten’s lawyer Justin Quill for a “misleading” speech made outside court after the judgment was handed down, which he said caused him “concern” and could have a bearing on his costs decision.

Mr Quill, a partner at Thomson Geer, gave a 10-minute address to the media after Justice Lee delivered his verdict last month, saying the ­result was a “resounding win for Channel 10”.

Justin Quill speaks to media following the judgment.

“One shouldn’t conflate or confuse the application of the legal test of reasonableness with what is good and reasonable,” Mr Quill said as part of the speech. “Ultimately, I’ve got to say this: how can it be unreasonable to publish something that was true?”

Justice Lee described Mr Quill’s comments after the judgment as “misleading”, and said the lawyer did a “discourtesy” by making the comments without first reading the judgment.

In an affidavit tendered to the court last month, Mr Quill expressed contrition for his actions outside of court. As such, Justice Lee on Friday indicated “no further comment or action” from the court would be made in relation to the speech.

“Notwithstanding the position taken by Network 10 at the hearing and the comments of its spokesman after judgment, after these issues were raised, further affidavits and submissions explaining the considered and current view of Network Ten were provided to the court,” he said.

“This material suggests that (Saul of Tarsus-like) the scales have belatedly fallen from the anthropomorphic eyes of Network 10 – in the circumstances, no further comment or action from this court is necessary nor appropriate.”

The Federal Court earlier this week heard Mr Lehrmann’s lawyers were operating on a “no win, no fee” basis, and will not receive payment for representing him in the matter. Mr Lehrmann is unemployed, and expected to declare bankruptcy as a result of Justice Lee’s costs ruling. If he does, it is unlikely Ten will recover any of its costs and will be forced to foot the bill of the proceedings.

Ten and Wilkinson are yet to fully determine what proportion of costs the broadcaster will cover after the presenter hired separate legal counsel to represent her in the case.

At least some of Wilkinson’s legal fees will be covered by Ten under an indemnity covering costs that were “properly incurred and reasonable in amount”.

However, Justice Lee said these were just “preliminary views” and said he could hear further discussion on the matter at a later date.

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