The Federal Court has given the go-ahead to former Liberal Party adviser Bruce Lehrmann’s plan to sue media outlets over interviews they conducted with Brittany Higgins.
In the interviews — which Mr Lehrmann argues identified him — Ms Higgins alleged she was raped in a parliamentary office in 2019.
Mr Lehrmann had to ask the court for permission to lodge a defamation claim against Network Ten and News Life Media because the usual 12-month deadline for these claims had expired. Their stories about Ms Higgins aired and were published in February 2021.
He also filed a separate claim against the ABC, which broadcast a speech Ms Higgins gave to the National Press Club in February 2022.
He told the Federal Court his lawyer had advised him he could not begin civil action until his criminal matters were resolved.
Mr Lehrmann underwent a criminal trial last year over the alleged rape of Ms Higgins, though the trial was eventually abandoned due to juror misconduct.
He has always maintained his innocence and there have been no findings against him.
Lehrmann says he was advised not to sue until criminal trial finished
During his criminal trial, Mr Lehrmann maintained his right to silence.
But he was called to give evidence in the Federal Court last month, when he argued he should be allowed extra time to lodge his defamation application.
That hearing examined text messages between him, his then girlfriend and other friends, mostly on the night Ms Higgins’s interviews went public in 2021.
Ms Higgins did not name Mr Lehrmann in the interviews, when she described being sexually assaulted on a couch in the office of then federal minister Linda Reynolds, but Mr Lehrmann said he was easily identifiable as the alleged rapist.
The story was initially published by Samantha Maiden on news.com.au, and the interview with Lisa Wilkinson aired on the same evening on The Project.
Mr Lehrmann has accused the journalists and their employers of being recklessly indifferent to the truth or falsity of the rape claims.
He told the Federal Court he had watched The Project interview with his lawyer in his office that night.
He said he asked about defamation proceedings at the time but was advised that any criminal matters would need to be resolved first.
Mr Lehrmann’s lawyers told the Federal Court last month that, because of the criminal matter, it would not have been reasonable for him to file a defamation case in 2021.
They also raised concerns about his health and the stress of the ongoing public scrutiny on him.
The court heard that, until it became clear late last year that there was to be no criminal retrial, it was not reasonable for Mr Lehrmann to commence defamation proceedings.
“In the circumstances of this case, it is submitted, it is just and reasonable to extend the limitation period to the date on which Mr Lehrmann ultimately commenced proceedings,” his lawyers said.
“He acted promptly after the announcement on December 2, 2022 that the prosecution would be discontinued and could not realistically have commenced proceedings any sooner after the end of the criminal proceedings against him.”
Mr Lehrmann’s surprise appearance in the hearing last month was followed by an agreement to have his lawyer give evidence in a follow-up hearing, to corroborate his story about the advice he gave.
That plan was ultimately abandoned.
Media argue Lehrmann had enough time to file claim
Lawyers for Network Ten, News Life Media and Maiden urged the court to reject Mr Lehrmann’s account of his legal advice, given it was not corroborated.
In their submissions, they said the only record of what was said came from Mr Lehrmann’s text messages to his then girlfriend and other friends, which included comments like “I won’t be going to prison and I have two lined up for civil”, and to his girlfriend about his advice from his lawyer: “If I am named tonight then he says I’m up for millions as defamation.”
In other messages, he wrote: “I’ve got criminal and a defamation.”
The media lawyers’ submission said: “Those messages entirely contradict [Mr] Lehrmann’s evidence-in-chief.”
The lawyers told the court the messages should be fatal to Mr Lehrmann’s request for an extension of time, because they suggested he was given the opposite advice.
Mr Lehrmann was challenged about the messages under cross-examination, when he said they were not a true reflection of the advice he received, as he was trying to put the best light on the stressful situation, particularly to placate his girlfriend.
The media lawyers also suggested Mr Lehrmann’s reliance on his stress from media attention and psychiatric treatment was overstated.
“His admission to the hospital occurred after, the previous evening, he had gotten intoxicated in [his lawyer’s] office and sent a raft of messages seeking to source ‘bags’ of ‘gear’ in order to ‘get lit’,” the lawyers said.
“… save for a brief hospital admission between February 16-18, 2021, and a voluntary admission to the Northside Clinic until March 2, 2021 (a period of 12 days) there is no evidence before the court that Lehrmann’s mental health was so deleteriously affected in the days, weeks and months following the publication of the matters complained of that it was not reasonable for him to commence defamation proceedings within the limitation period.”
Wilkinson was represented separately by defamation lawyer Sue Chrysanthou, who pointed out Mr Lehrmann had admitted he intended to sue Wilkinson from the start but took two years to lodge his claim.
Ms Chrysanthou also pointed out Mr Lehrmann’s criminal charge was not laid for some time after publication.
“Many of these proceedings are reasonably commenced, due to their seriousness, shortly after publication,” she said in her submission, adding this was usual in the face of possible criminal charges.
Judge finds it was reasonable to delay defamation application
Today, Federal Court Justice Michael Lee said he considered all circumstances that contributed to Mr Lehrmann waiting 20 months before contacting a defamation lawyer.
The judge said it was unreasonable for Mr Lehrmann to lodge his claim within a year, given he had received “express” and “repeated” advice — albeit from a criminal lawyer — not to do so.
“Mr Lehrmann’s actions reflect the fact that his real priority, even before prosecution, was the criminal allegations and, in recognising this priority, he engaged and then listened to a specialist criminal defence solicitor recommended by a trusted friend,” Justice Lee said.
The “advice to defer fighting on two fronts was unsurprising”, the judge noted.
“The full court … has observed that where a person is facing a criminal charge, and the impugned matter raises questions about the person’s guilt or innocence, the ‘ordinary’ position is that it will not be reasonable to commence defamation proceedings.”
Justice Lee said the defamation trial should begin as quickly as possible.
He also said he saw no reason why Mr Lehrmann’s additional claim against the ABC could not be heard at the same time.
The trial will begin on November 20 and is expected to take four weeks.