Federal Court Judge Michael Lee recently gave the green light for former Liberal Party parliamentary staffer Bruce Lehrmann to bring defamation proceedings against two media companies and two journalists, even though he missed the 12-month deadline to file the actions by nearly a whole year. Attwood Marshall Lawyers Commercial Litigation Senior Associate Jade Carlson explores the factors in the case that led to the surprising decision, after the evidence was sensationally dissected daily in the media.
Justice Michael Lee has granted former Liberal staffer Bruce Lehrmann an extension to the 12-month limitation period for bringing his defamation claims against Network Ten, journalist Lisa Wilkinson, News Life Media (the publisher of news.com.au) and News political editor Samantha Maiden.
The reports in question were broadcast and published on 15 February 2021 and focused on allegations by Brittany Higgins that she was sexually assaulted by a colleague in the ministerial suite of former Liberal Party minister for defence, Linda Reynolds, after a night out in March 2019.
Lehrmann was not named in the reports but says that he was identifiable. He filed the defamation suits in February 2023, nearly two years after publication.
The one-year deadline for defamation cases has historically been considered strict and any extension is rare.
In siding with Lehrmann, Justice Lee found that it was not reasonable for the former advisor to file suit within a year of publication of the alleged defamatory statements, because he was acting on legal advice from a criminal lawyer to focus on a criminal investigation against him instead.
“Mr Lehrmann was in the unusual position of directing his energies and resources in acting on advice to maximise his chances of avoiding, and then defending, one of the highest-profile and commented upon prosecutions in recent memory,” the Judge said.
A seminal, closely watched case
In his April 28 ruling, Justice Lee did not consider the allegations but dealt solely with Lehrmann’s application for an extension on the one-year limitation period for bringing his two defamation suits – one against Channel Ten and Lisa Wilkinson, and the other against News Life Media and Samantha Maiden.
For an extension of time to be granted, the plaintiff must satisfy the Court that it was unreasonable for the plaintiff to have commenced the proceedings in time and provide a satisfactory explanation for the delay. That is a threshold to meet before a Court can provide leave to proceed with the case.
The news outlets argued that Lehrmann could have filed his defamation actions and then sought a stay of the proceedings until any criminal case was concluded. However, Justice Lee said that if a stay was not granted or later dissolved, Lehrmann would have been faced with discontinuing the actions or compromising his defence strategy in the criminal proceedings. He would have had to “take a step into the unknown,” the judge said.
This was “no ordinary case,” Justice Lee said.
After Higgins resumed a previously abandoned criminal complaint into her allegations of sexual assault in February 2021, Lehrmann was charged with one count of sexual intercourse without consent.
He pled not guilty, and the case went to trial in October 2022. It later collapsed allegedly due to juror misconduct and prosecutors dropped the criminal case against him in December 2022, citing concerns for Higgins’ mental health. The ACT government subsequently established a Board of Inquiry into the Criminal Justice System headed by Walter Sofronoff KC, which has so far revealed sensational aspects of the prosecution and defence cases.
Regarding the defamation actions, Justice Lee considered the following broad five points as grounds for granting the extension:
- Lehrmann received legal advice on 15 February 2021, that he should defer any defamation proceedings (although there was doubt about the truth of this as the criminal lawyer was not called to give evidence)
- His actions reflect the fact that his real priority even before prosecution was the criminal allegations
- He was advised to defer fighting on two fronts
- His actions were consistent with a broader defence strategy of not taking what was perceived as an unnecessary step of commencing a defamation case, although he lied about what advice he had received to his girlfriend and other friends in contemporaneous texts
- The circumstances of the case justifying extension were relatively unusual
The limitation period was extended up until the proceedings were commenced in February 2023.
Key takeaway from the decision
The Lehrmann decision shows that there are some exceptions to the strict approach to the 12-month limitation period for bringing defamatory proceedings. However, proving that those exceptions apply –that the circumstances around the case are highly unusual – such action is likely a costly, and risky, exercise.
Most cases will not be so unusual and so the ordinary rules will apply.
First, a case for defamation needs to be established. Defamation is defined as the publication of material which harms a person’s reputation. To succeed in an action for defamation, the aggrieved person must prove, among other things, that:
- The material has been published to a third party;
- The material clearly identifies and is about the aggrieved person; and
- The material published contains defamatory imputations about the aggrieved person, which are untrue.
There is also a “serious harm” element, which came into effect in July 2021 under section 10A of the Defamation Act 2005, now requiring the plaintiff to prove the defamatory material caused, or is likely to case, serious harm to the reputation of the plaintiff.
The serious harm element was introduced in response to concerns that defamation actions were being brought for trivial and vexatious “backyard claims,” with high costs and stress for private individuals to defend.
If you are an aggrieved person and you think that someone has published defamatory material about you, a defamation lawyer can advise you and prepare a Concerns Notice to be served on the publisher requesting the publisher to withdraw the publication, provide undertakings not to publish material similar or defamatory to you in the future, publish a retraction, pay your legal costs and make an offer to pay you compensation.
It is now a requirement for a plaintiff to serve a Concerns Notice before commencing proceedings.
There are no two matters that are the same when it comes to defamation, so it is important to get independent legal advice about your specific circumstances to understand the best course of action to take.
Attwood Marshall Lawyers – Experienced defamation lawyers helping to protect your reputation
Attwood Marshall Lawyers has a dedicated team of Commercial Litigation lawyers who practice exclusively in this complex area of law. If something has been written, said, or published about you which you believe has damaged your reputation, contact our team to find out where you stand.
We can assist with all defamation matters to help you protect your personal and professional reputation.
For a confidential discussion about your matter, please call our Commercial Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email email@example.com or free call 1800 621 071.