During a costs hearing in Sydney on Monday,Federal Court Justice Michael Lee said Wilkinson was seeking an indemnity “in excess of $1.8 million” after she opted to brief a separate team of lawyers to her employer.
“There’s just an ongoing reluctance to pay us anything,” Wilkinson’s barrister,Michael Elliott,SC,told the court.
Lisa Wilkinson (left),Bruce Lehrmann and Brittany Higgins.Getty Images,Dominic Lorrimer,Steven Siewert
Ten’s barrister,Zoe Graus,said there were “certainly costs which we do not dispute are recoverable by Ms Wilkinson”.
However,the court heard Ten disputed whether it should pay for multiple lawyers to attend court for Wilkinson during the cross-examination of witnesses on issues relating to the media parties’ successful truth defence,on which Ten took the lead.
,Lee ordered Lehrmann to pay Ten and Wilkinson’s multimillion-dollar costs of the truth defence on an indemnity basis,which covers about 90 per cent of a successful party’s legal bill. However,he said the former federal Liberal staffer should only be on the hook for the costs of their unsuccessful fallback defence of qualified privilege on an ordinary basis,which would cover about 70 per cent of their costs.
Risk of bankruptcy
The court has heard Lehrmann has been unemployed since June 2021 and is a law student,and there is a possibility he will be tipped into bankruptcy. It means the costs order against him is likely to be academic because he does not have the financial means to meet it.
Given the unlikelihood of Wilkinson recovering any costs from Lehrmann,Ten will pay at least some of its employee’s legal bills under an indemnity covering costs “properly incurred and reasonable in amount”.
“As I understand it,Ms Wilkinson seeks an indemnity[from Ten] in respect of $1,815,000 worth of costs inclusive of GST,give or take a few cents,” Lee said on Monday.
Questions for referee
A referee was originally expected to be asked to quantify the costs payable by Lehrmann,but Lee raised the prospect on Monday that he may be persuaded to make a lump-sum costs order against him at a future date. Ten’s barrister agreed it was “premature” to send the matter to a referee.
Lee said that he did not want to engage in “undue speculation” but it appeared from what he had been told that there were “limited prospects of recovery” of any sum from Lehrmann. It meant Ten might be “throwing good money after bad” paying for a referee,he said.
Unless Ten and Wilkinson can strike an agreement in the coming weeks about the costs the network will cover for Wilkinson,a referee is expected to be asked to quantify those costs.
Appeal
Lehrmann has until May 31 to file any notice of appeal against to dismiss his lawsuit over an interview with Brittany Higgins,broadcast on Ten’s The Project on February 15,2021,and anchored by Wilkinson. He had claimed the report defamed him by suggesting he was guilty of sexual assault.
Lee found Ten and Wilkinson had proven to the civil standard – on the balance of probabilities – that in Parliament House in March 2019 when they were working as staffers to Liberal senator Linda Reynolds,who was then the defence industry minister. This is lower than the criminal standard of beyond reasonable doubt.
If Lehrmann does proceed with an appeal,Ten and Wilkinson may apply for security for costs to cover their legal bills in the event he loses the appeal.
War veteran Ben Roberts-Smith,whose litigation was bankrolled by Seven West Media chairman Kerry Stokes via a private company, to bring an appeal against his defamation loss. The Full Court of the Federal Court will deliver its decision in the Roberts-Smith appeal at a later date.
Lehrmann’s lawyers agreed to act for him in the defamation case on a.
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