Lehrmann given extension of time to lodge defamation appeal

Bruce Lehrmann has been granted an extension of time to lodge any appeal against a landmark decision dismissing his defamation case after a judge found on the balance of probabilities that the former federal Liberal staffer raped Brittany Higgins in Parliament House.

Lawyers for Lehrmann, Network Ten and Lisa Wilkinson returned to court on Wednesday for submissions on legal costs of the defamation fight. The combined costs of the trial are estimated at $10 million, and Ten is seeking access to documents revealing if Lehrmann had financial backers.

Bruce Lehrmann departs court after the verdict on April 15.Credit: Wolter Peeters

Lehrmann’s junior barrister, David Helvadjian, told the Federal Court in Sydney that a new senior counsel “has been briefed to provide advice on prospects” of success of any appeal.

He sought an extension of the usual 28-day window for lodging any notice of appeal, which would otherwise have expired on May 13.

Justice Michael Lee referred in court to media reports that Sydney barrister Guy Reynolds, SC, had been briefed. Ten and Wilkinson did not oppose the extension to May 31.

Ten has argued Lehrmann should be ordered to pay all of its costs of the case on an indemnity basis, which covers a higher proportion of a costs bill than the standard order.

It is also seeking access to documents relating to any financial assistance given to Lehrmann, which could form the basis of an application that a third party stump up the costs of the failed lawsuit.

Dr Matt Collins, KC, acting for Ten, told the court on Wednesday that Lehrmann must have known the case was “doomed to fail”.

It is unlikely Lehrmann has the financial means to meet any costs order, meaning that in practical terms Ten will be left to cover its own costs and part of Wilkinson’s bill for her separate legal team.

The court has heard he has not been employed since June 2021 and is a law student, and there is a possibility he will be tipped into bankruptcy.

Lee said at the end of the hearing that he had “reached a level of satisfaction that there will be a costs order made” in Ten’s favour, but the precise nature of the order is not yet known. He will deliver his decision at a later date.

Judge takes aim at Ten

The judge had asked Ten for a transcript of comments made by one of the network’s lawyers after his judgment on April 15.

Thomson Geer partner Justin Quill, one of Ten’s solicitors, had said outside court that “the way in which judges and barristers pick apart and dissect what journalists did or didn’t do in applying a legal threshold or legal test of reasonableness is quite often divorced from reality”.

Justin Quill, one of Network Ten’s lawyers, outside the Federal Court in Sydney on April 15.Credit: Wolter Peeters

Quill’s comments were a reference to Ten and Wilkinson’s fallback defence of qualified privilege, which Lee found would not have been successful had the media parties needed to rely on it.

Lee said on Wednesday that he did not consider his examination of the issues to be devoid of or divorced from reality. He said the comments were “quite misleading” in some respects.

But Collins said this was not a matter that could affect Lee’s decision on costs.

Separately, Lee asked Ten for an explanation of comments made by Quill about Wilkinson’s Logies acceptance speech in 2022. That speech, approved by Ten’s senior litigation counsel, led to Lehrmann’s criminal trial for Higgins’ sexual assault being delayed to avoid the risk of prejudicing the jury.

The eventual trial was aborted owing to juror misconduct, and he did not stand trial for a second time owing to concerns about Higgins’ mental health.

Quill said in an affidavit that the comments “were no more than my personal views, of which Network Ten had no prior notice”.

After hearing from Collins, Lee said: “I fully accept that everyone makes mistakes”.

Funds for appeal

It is not yet clear if Lehrmann has the funds to bring an appeal.

War veteran Ben Roberts-Smith agreed to orders requiring him to pay almost $1 million as security to cover the legal costs of Nine newspapers in the event he loses his appeal against his own devastating defamation loss. Ten and Wilkinson may also seek security for costs from Lehrmann.

The defamation case

Lehrmann launched defamation proceedings against Ten and Wilkinson last year over a February 2021 interview with Higgins aired on The Project.

Ten and Wilkinson’s centrepiece defence of truth was upheld by Lee. He found to the civil standard, meaning the balance of probabilities, that Lehrmann raped Higgins.

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