Attwood Marshall Lawyers Legal Practice Director Jeff Garrett joins Robyn Hyland for Law Talks on Radio 4CRB to dissect the Lehrmann defamation trial against Network 10. Contrary to the way mainstream media reports portrayed the case, Brittany Higgins was only a witness – she was not a party to the proceedings.
A case that gripped the nation
Given the recent media attention surrounding the Bruce Lehrmann Defamation Trial, it is pertinent to delve into the intricacies of defamation law and dissect the case to help people understand how the courts look at disputes over defamation claims.
Defamation cases are increasingly prevalent in Australia. From high-profile figures, including government officials, to Hollywood celebrities, we have watched on as individuals pursue legal redress in this space after suffering damage to their reputations because of statements published about them.
Despite its prevalence, it’s important to understand how difficult proving defamation is.
In 2021, several Australian states and territories implemented an amendment to the defamation laws by incorporating a “serious harm” criterion. Under this amendment, plaintiffs must demonstrate or establish the likelihood of significant damage to their reputation from the publication in question.
Introducing the “serious harm” threshold was designed to encourage the resolution of defamation disputes outside the courtroom, particularly when the potential damages do not justify the high litigation costs.
Despite these legal hurdles, the financial burden of defamation trials has not deterred litigants, as seen in numerous high-profile cases. One such instance is the Bruce Lehrmann trial, which we will explore in detail. Despite the high stakes and considerable costs, the parties pursued their claims and defences vigorously, highlighting the complexities and challenges of defamation law in Australia.
The journey to a defamation claim: a confluence of politics and media
The backdrop of the Lehrmann defamation case is politically charged, entwined with events that could have swayed the Australian government.
During the lead-up to the 2019 election, Scott Morrison, then Prime Minister after sensationally usurping Malcolm Turnbull, managed to clinch a narrow victory against all predictions. Around this time, the incident involving the sexual assault of Brittany Higgins by Bruce Lehrmann occurred. Both were staffers for Liberal minister, Linda Reynolds, and the incident took place in the minister’s office in Parliament House, Canberra.
Had the allegations surfaced before the election, the impact on the Liberal government could have been disastrous. As it transpired, Scott Morrison won the election, but with a very slender margin. Arguably, had this matter aired in the lead-up to the election, many pundits believe it would have swayed the election result in favour of the Bill Shorten led Labor Party. This set the stage for allegations of a possible cover-up by the Liberal Party, alleging that Higgins was pressured to keep her accusations quiet to avoid influencing the election outcome.
Under Morrison’s administration, issues regarding the Liberal Party’s treatment of women seemed to escalate, contributing to public scrutiny and a perception of misogyny within the ranks of the male-dominated ministry.
Amidst the drama, Lehrmann faced criminal prosecution by the ACT DPP. This was seen by some as politically motivated due to the involved parties being Liberal party staffers. In contrast, others argued it was a necessary pursuit of justice amidst broader concerns about the under-prosecution of sexual assault cases.
The trial, however, ended abruptly in a mistrial declared by the judge due to juror misconduct, adding another layer of sensation to the case. No criminal findings were made against Lehrmann after a retrial was ruled out due to the mental health of Brittany Higgins.
Despite Lehrmann walking away from the failed criminal trial a free man, he initiated a defamation case against Network 10 and Lisa Wilkinson.
This stemmed from an interview on The Project where Higgins alleged she was raped. Although Lehrmann was not named during the interview, which aired in February 2021, Lehrmann claimed that the implications in the program made it easy to deduce his identity, alleging that this association had harmed, or was likely to harm, his reputation and he was entitled to damages.
The Judge’s findings
In defending Lehrmann’s defamation claim, Network 10 and Lisa Wilkinson primarily relied on two legal defences:
- “Contextual truth”: For this defence,Network 10 needed to prove that the statement they made in the interview carried other imputations that were substantially true, and thus, even if Lehrmann’s reputation was harmed, it was not additionally damaged beyond the statements made. Essentially, this required addressing whether Lehrmann had raped Brittany Higgins. Despite the absence of a criminal conviction, the defence argued this point in the civil court (Federal Court of Australia) which required a different standard of proof to that of a criminal trial – the allegation of rape needed to be proved on the balance of probabilities and not ‘beyond a reasonable doubt’.
- Qualified privilege: This defence required Network 10 to show that the information was published to an audience with a legitimate interest in knowing it and that the publication was reasonable under the circumstances.
Justice Lee critiqued the qualified privilege defence, suggesting that Network 10 should have conducted more thorough investigations before broadcasting the interview. However, this defence was less pivotal once the contextual truth defence was established.
Justice Lee’s decision hinged on the testimony of Brittany Higgins and other evidence supporting her claims. He found that, on the balance of probabilities, it was true that Lehrmann had raped Higgins in 2019 in the Liberal Minister’s office in Parliament House. This finding was critical as it directly supported the contextual truth defence that was pleaded by Network Ten and Lisa Wilkinson.
Justice Lee acknowledged that Higgins could not give consent at the time due to her intoxication and that she was not aware of her surroundings. He also noted that Lehrmann was likely indifferent to her consent, focusing solely on his gratification.
Justice Lee also critiqued Lehrmann’s credibility, noting that he told deliberate lies during the trial and his evidence was inconsistent with the likely facts and corroborating contemporaneous evidence. Although he acknowledged that Higgins might be an unreliable witness in some respects, he ultimately deemed her credible and believed her account of events supported by evidence.
Given these findings, Justice Lee dismissed Lehrmann’s defamation claim. He concluded that Network 10 and Lisa Wilkinson did not defame Lehrmann since the core allegations were found to be true.
The costs of taking defamation disputes to court
The Lehrmann defamation trial is estimated to have cost an eye-watering $8-10 million, although the exact amount remains unknown.
Even though the defamation dispute has concluded (unless appealed), the issue of who bears these costs is still unresolved. Network Ten argues that Lehrmann should cover the costs because they believe his legal action was “deliberately wicked and calculated” and an abuse of process.
A consideration is that Lehrmann was offered a “walk away” offer by the Network before trial commenced, on the basis that either party would make no admissions and no money was to change hands. He rejected it, forcing Network 10 to proceed to trial, when the costs escalated quickly.
Network 10 relies on a precedent set in the Ben Roberts-Smith defamation case. In that instance, Roberts-Smith was ordered to pay indemnity costs after being found to have abused the legal process in bringing the claim.
In defamation cases, if the claimant loses, they will likely be ordered to pay the respondent’s costs. Most cases are settled before trial, significantly reducing costs for all parties involved.
However, Lehrmann has been unemployed for several years and lacks the financial means to cover such substantial costs in this case.
A costs hearing was scheduled for 1 May to determine who should pay what percentage.
While Justice Lee reserved his decision, he hinted that it might favour Network 10. The extent of the costs Lehrmann will be required to pay remains uncertain at the time of writing this article. It transpired that Lehrmann’s lawyers ran the case on a ‘no win no fee’ basis, which means that he will not have to pay his own lawyers. However, it is almost certain he will be ordered to pay the costs of Network 10 and Lisa Wilkinson, which will be at least several million dollars and perhaps 8-10 million dollars.
Lehrmann’s potential bankruptcy could leave Network 10 bearing the majority of the costs themselves. Lisa Wilkinson’s costs will most likely be covered by her employer under the usual principle of vicarious liability by an employer for its employee’s actions (and in this case, she had received legal advice from the Network 10 inhouse lawyer, who received a scathing rebuke from Justice Lee).
Can Lehrmann Appeal the judgment?
It remains uncertain whether Lehrmann will seek an appeal. Given the potential damages estimated at only $20,000 should he win – an amount reflecting compensation for the minimal remaining value of his reputation – the prospects seem unlikely.
Lehrmann’s new legal team has applied for more time to lodge a notice of intention to appeal, and Lehrmann has sought advice from a new senior counsel on his prospects of successfully appealing the judgment.
For an appeal to succeed, Lehrmann must convince the appellate court that the original judge “made an error of law … of such significance that the decision should be overturned”.
Justice Lee’s meticulous 324-page decision, which thoroughly addressed all aspects of the case, presents a formidable challenge for finding viable grounds for appeal.
Until senior lawyers review the decision, Lehrmann’s potential for an appeal remains a critical, albeit uncertain, gamble.
Attwood Marshall Lawyers – experienced defamation lawyers helping to protect your reputation
The extensive publicity surrounding recent defamation trials is likely to give potential pause to anyone considering bringing a claim of their own.
In today’s digital world, where publishing and widely distributing content about someone is easier than ever, defamation claims remain in focus and draw significant attention.
If you believe that a statement published about you has damaged your reputation, it is crucial to seek independent legal advice tailored to your circumstances. This ensures you understand the best course of action and your likelihood for success.
At Attwood Marshall Lawyers, our dedicated team of Commercial Litigation lawyers practice exclusively in this complex area of law.
For a confidential discussion about your situation, please call our Commercial Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, or email aheather@attwoodmarshall.com.au or free call 1800 621 071.
Our defamation lawyers are available for appointments at all our conveniently located offices at Robina Town Centre, Coolangatta, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.
UPDATE – 11th May 2024
On Friday 10th May, Federal Court Judge Michael Lee granted a costs order in favour of Network 10 and determined that the network is entitled to reclaim its legal expenses from Mr Lehrmann.
The costs will be covered on two different bases, reflecting distinct legal principles that Australia has adopted from English law.
For the truth defence, costs will be recovered on an indemnity basis, which means up to 90 per cent of the network’s legal fees could be awarded to be paid by Lehrmann.
Indemnity costs are awarded in certain cases to more fully compensate the winning party, often when the court believes the losing party’s actions justified a more comprehensive recovery for legal costs.
For the qualified privilege defence, the recovery will be on an ordinary or ‘party-to-party’ basis, which would normally result in approximately 50-70 per cent of the network’s legal costs being recovered for this element. Standard or party-to-party costs are the more common form of costs recovery, where the losing party pays a portion of the winning party’s expenses that are deemed reasonable and necessary.
This method aims to balance the financial burden of litigation without fully compensating the winning side for all expenses incurred, and underscores the legal system’s intent to ensure fairness in litigation. Many people think that if they win a case, all of their legal costs are paid. However, in our legal system this is not necessarily the case and the rough rule of thumb is that you are lucky to recover 50 per cent of your actual legal costs incurred with your own lawyers.
Justice Lee made an award under the same terms for Lisa Wilkinson’s legal fees, although her legal fees will most probably be paid by Network 10. The total legal fees were thought to be in the vicinity of 8-10 million dollars. It could well be a Pyrrhic victory for Network 10 – It is likely Bruce Lehrmann will declare bankruptcy if he is faced with a legal bill of that magnitude. This will most likely result in Network 10 recovering little or nothing for their troubles.
A case management hearing has been set for 27th May.
Update – 28th June 2024
Bruce Lehrmann has been ordered to pay $2 million in costs to Network Ten and Lisa Wilkinson after his unsuccessful defamation lawsuit.
Although Network Ten estimated their legal costs to exceed $3 million, they sought a lump sum of $2 million to avoid the additional expense and delay of a costs assessment.
Lisa Wilkinson has been offered $558,548.30 to cover her legal representation, however this is significantly less than the $1.8 million she originally requested from Network Ten. It may well be that Wilkinson accepts the amount offered to avoid the same issues regarding a possible assessment of her costs – it was also complicated by the verdict which allowed the truth defence, but not the qualified privilege defence. Usually, costs follow the event, so the costs incurred on the unsuccessful latter defence would normally not be recoverable from any party.
Given Lehrmann’s “modest means” and his unemployment since June 2021, it is unlikely that the full costs will be recovered by Network Ten. Indeed, it has been speculated Lehrmann will declare himself bankrupt in order to avoid any payment of the costs award. His own lawyers acted for him on a ‘no win, no fee’ basis, so he at least will not have to worry about their bill. If Lehrmann has no means or assets, the costs issue becomes a moot point for Network Ten. Lisa Wilkinson will at least be able to recover her costs (or part thereof) from her former employer.
That should at least bring the proceedings to an end in so far as the judgment and costs issues are concerned. There remains the issue of Lehrmann’s appeal, in which he is acting for himself. One would glean from this that lawyers were not willing to take his case on unless they were getting paid.
This brings to an end one of the most highly followed trials in the history of defamation cases in Australia. The mixture of lies, sex, political intrigue, the involvement of the media, and media personalities all contributed to a sensational legal case before an erudite and charismatic Federal Court Judge, destined it seems, for higher honours.
