In a historic decision on Monday,Federal Court Justice Michael Lee upheld Ten and Wilkinson’s truth defence to Lehrmann’s defamation claim over an interview with Higgins broadcast on The Project on February 15,2021.
Bruce Lehrmann leaves the Federal Court in Sydney after losing his defamation suit.Dominic Lorrimer
Lee found Lehrmann was “hell-bent on having sex” with Higgins,had encouraged her to drink,and did “not care one way or another whether Ms Higgins understood or agreed to what was going on”.
The trial is estimated to have cost at least $10 million. While Lehrmann is expected to face an order that he pay the media parties’ legal costs,he will not be able to meet that order personally.
Sources with knowledge of the case,not permitted to speak publicly,told this masthead that Ten was considering asking the court to order an unknown third party to stump up the legal bill for Lehrmann’s failed defamation lawsuit. The application for a third-party costs order could help reveal Lehrmann’s financial backers.
Seven West Media chairman Kerry Stokes,who bankrolled Ben Roberts-Smith’s defamation litigation via a private company,.
Lehrmann ‘intent upon gratification’
Lee was satisfied Ten and Wilkinson had proved to the civil standard – on the balance of probabilities – that Lehrmann raped Higgins in the Parliament House office of their then-boss,Liberal senator Linda Reynolds,in the early hours of March 23,2019.
This is lower than the criminal standard of beyond reasonable doubt. Lee’s decision does not amount to a finding of criminal guilt.
“I am satisfied that it is more likely than not that Mr Lehrmann’s state of mind was such that he was so intent upon gratification to be indifferent to Ms Higgins’ consent,and hence went ahead with sexual intercourse without caring whether she consented,” Lee said in a 324-page decision.
He said that “intercourse commenced when Ms Higgins was not fully cognitively aware of what was happening”. Lee did not make a finding that Higgins said no “on a loop”,as she said in her evidence.
“I think it is more likely than not that she did not,or was not,able to articulate anything. On balance,I find it is more likely than not that she was passive … during the entirety of the sexual act.”
Lehrmann encouraged Higgins to drink
Lee found that Higgins consumed 10 spirit-based drinks at The Dock,a watering hole on the Kingston foreshore,in the hours before the sexual assault,in addition to a glass of wine at home. He also found she had “at least two,but possibly more,spirit-based drinks” at a second venue,Canberra nightclub 88mph.
He said Lehrmann was “aware of her drinking and,towards the end of the evening,was encouraging her to drink well beyond the bounds of sobriety”.
Lehrmann’s criminal trial was aborted in October 2022 due to juror misconduct,and the charges were later dropped altogether owing to concerns about Higgins’ mental health.
Lisa Wilkinson departs the Federal Court in Sydney with her barrister,Sue Chrysanthou,SC.Wolter Peeters
Lehrmann has always maintained his innocence and Lee made clear that “Mr Lehrmann remains a man who has not been convicted of any offence,but he has now been found,by the civil standard of proof,to have engaged in a great wrong”.
“It follows Ms Higgins has been proven to be a victim of sexual assault,” he said.
Of Lehrmann’s decision to bring defamation proceedings after the criminal trial collapsed,Lee said:“Having escaped the lions’ den,Mr Lehrmann made the mistake of going back for his hat.”
Higgins a ‘complex’ witness
Lee said it would be fair to describe Higgins “as a complex and,in several respects,unsatisfactory witness”.
“Nuance is required in evaluating her evidence,and any contentious and uncorroborated aspect needs to be scrutinised warily,” he said.
He also found that since 2021 Higgins had “sometimes told untruths when it suited her”.
However,he said that her account in court of waking up in Parliament House with Lehrmann on top of her “struck me forcefully as being credible and as having the ring of truth”.
Importance of truth defence
University of Sydney professor David Rolph,an expert in defamation law,said the decision “reinforces the importance of the defence of truth in defamation”.
“If a publisher can establish that what they publish is true,it does not matter what their motive is in publishing. It does not matter whether the publisher acted reasonably. All that matters is that what was published was substantially true.”
He said that “the case demonstrates yet again that defamation litigation is risky”.
“The person suing puts their reputation in issue. This is yet another high-profile,high-stakes defamation trial in which the person suing to protect their reputation has been found by a court not to have a reputation deserving of protection.”
‘Strength to women around the country’
Flanked by her barrister,Sue Chrysanthou,SC,a jubilant Wilkinson said outside court that the court had found she “published a true story about a rape in a federal minister’s office at Parliament House”.
“I sincerely hope that this judgment gives strength to women around the country,” she said.
Justin Quill,one of Network Ten’s solicitors,praised Higgins’ bravery in testifying “in the glare of publicity and spotlight”.
“Channel Ten couldn’t have defended this case without Brittany. There’s no doubt that Brittany was brave in turning up here and giving the evidence that she did,” he said.
Asked about legal costs,Quill said that “I would be hopeful at the least and,in fact,confident that we should get an award of costs” but “how much that turns out to be in actual dollars I couldn’t say”.
Lehrmann launched defamation proceedings last year against Ten and Wilkinson,a former co-host ofThe Project,alleging the interview with Higgins conveyed the defamatory meaning that he was guilty of raping Higgins in Parliament House.
Lee found that the broadcast identified Lehrmann even though he was not named,owing to the description given of the alleged perpetrator.
The media parties’ centrepiece defence was truth. As a fallback option,they sought to rely on the defence of qualified privilege,which relates to publications of public interest where a media company and its journalists can show they acted reasonably.
Ten,Wilkinson cop criticism
As part of his assessment of the qualified privilege defence,Lee considered the conduct of Ten and Wilkinson. He made clear that his “analysis of the reasonableness of the conduct of the publishers starts from the premise that the rape allegation has not been proven to be true”.
“This is because if the defamatory imputation is true,it is unnecessary to consider this separate defence which recognises that a publisher can publish untrue material but still act reasonably.”
He found that defence would not have been established if the truth defence had failed,because the “conduct of Network Ten and Ms Wilkinson in publishing the matter ... conveying the defamatory imputations of rape fell short of the standard of reasonableness”.
Lee said that “[The Project’s producer] Mr[Angus] Llewellyn,like Ms Wilkinson,started from the premise that what Ms Higgins said about her allegations was true”.
“They resolved from the start to publish the exclusive story and were content to do the minimum required to reduce unacceptable litigation risk.”
Lee added that “even though[Ten and Wilkinson] have legally justified their imputation of rape,this does not mean their conduct was justified in any broader or colloquial sense”.
“The contemporaneous documents and the broadcast itself demonstrate the allegation of rape was the minor theme,and the allegation of[political] cover-up was the major motif,” he said.
Angus Llewellyn outside the Federal Court in Sydney last year.Steven Siewert
“The publication of accusations of corrupt conduct in putting up roadblocks and forcing a rape victim to choose between her career and justice won theProject team … a glittering prize,but when the accusation is examined properly,it was supposition without reasonable foundation in verifiable fact;its dissemination caused a brume of confusion,and did much collateral damage.”
Lee said that “to the extent there were perceived systemic issues as to avenues of complaint and support services in parliament,this may have merited a form of fact-based critique,not the publication of insufficiently scrutinised and factually misconceived conjecture”.
The parties have until April 22 to file submissions on costs.
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