Hearing adjourned for the day and will resume at 10.15am on Friday
Justice Lee reminded Auerbach he was not to discuss his evidence with anyone as he was still under cross-examination.
Auerbach was cross-examined about the dates and the metadata of the materials he referred to in his affidavits
Richardson suggested Auerbach did not have access to all the documents he claims to.
Auerbach said Llewellyn gave verbal approval for the per diems.
Auerbach: “I only saw the invoice issued, I didn’t see the payment receipt.”
Auerbach alleges a photograph was taken of the Cellebrite report by Spotlight executive producer Mark Llewellyn
Auerbach is being asked about the Cellebrite report – a police record of the text messages sent between Brittany Higgins and her former boyfriend Ben Dillaway.
He said he was aware of when and where the photograph was taken from looking at the metadata, which showed the date and place they were taken as an address in Randwick where Lehrmann was staying.
Auerbach alleged that photographs were taken of the Cellebrite report on a screen and that Llewellyn’s reflection, specifically his “glasses” and “bald head” could be seen in the reflection of the screen.
Updated
Auerbach is questioned about material on his phone
Auerbach is now being questioned by Richardson about when he discovered documents on his phone: before or after he swore an affidavit.
Auerbach said he found some material in the photos app on his phone.
Richardson is delving into records of Auerbach’s conversations with his psychologist, and asking if he told her he had slowed down his drinking.
Richardson: “You told her that prior to this time you have been consuming less than 140 standard drinks a week or less than 30 standard drinks a day. Do you remember that?”
“You deny that?”
Richardson suggests that Auerbach’s “recollection of anything that happened in November or December 2022 is suspect, do you agree or disagree?”
Auerbach: “I disagree.”
Auerbach agreed he resented Jackson when his contract with Seven was not renewed
Richardson said: “In recent weeks, that is in March 2024, you have been back grounding journalists against Mr. Jackson, haven’t you?”
Jackson: “In part.”
He confirmed he was upset that his name was not on the Walkley Award entry for the Lehrmann story and he complained to Seven and to the Walkleys themselves that his name should have been on the entry.
However, he said he was not proud of that story at all.
Updated
Auerbach denies attempting to damage former Channel Seven colleagues
Auerbach has agreed that he “hates” his former friend and Seven colleague Steve Jackson.
Richardson: “I want to suggest you are willing to say anything, no matter how false to damage people that are employed by Channel Seven or connected with Channel Seven?
“For instance, you particularly hate Steve Jackson, your colleague from Seven who worked on the Lehrmann story, don’t you?”
Auerbach: “Yes.”
His answer elicited some sniggers from the gallery.
The court is now playing a video Auerbach posted on social media in which he breaks golf clubs owned by Jackson, who used to be his friend.
Richardson then asked Auerbach about the video in which he destroyed the clubs Jackson had left at Auerbach’s home, alongside the caption “Merry Christmas, sue me”.
Richardson alleged the clubs were worth a few thousand dollars, something Auerbach disputed.
The video was played to the court to some laughter from the gallery and judge.
Auerbach said the video was a “parody” of a video made by Spotlight executive producer Mark Llewellyn days earlier, and that it was important to watch the videos side by side.
Updated
Auerbach tells court he was offered a promotion and a pay rise by Seven after night out with Lehrmann
Lehrmann’s barrister is asking Auerbach about receipts for a Thai massage parlour which he put on a Seven corporate credit card.
Richardson asked Auerbach if he agreed that the expense he put on the corporate credit card had nothing to do with work.
Auerbach did not agree.
Richardson said Auerbach sent an email resignation to Seven on Saturday 26 November at 7:39am, which said: “It’s with profound regret [and] immense remorse that I tender my resignation.”He said the incident had nothing to do with work.
Auerbach said he was emotional on that morning about the night before but he insisted the expense was to do with work.
Auerbach said after the night in question he was offered a promotion and a pay rise by Seven after they learned he had billed the company credit card for massages.
Updated
Lehrmann’s barrister begins cross examination
Auerbach is now being cross-examined by Lehrmann’s barrister about sending naked photographs of a “vulnerable” woman to journalists.
He admitted to sending the photos, disagreed that the woman was vulnerable, and said he did not know it was a criminal act to send photographs of that nature without her consent.
Richardson: “Now did your employers at Sky become aware that this had happened, that is, that you had sent these photographs of this woman to various media organisations?”
Auerbach said Sky News told him they were terminating him for “trust and confidence issues”.
Updated
Lehrmann agrees to the Spotlight interview, says Auerbach
Auerbach said Lehrmann agreed to do a Spotlight interview but on the condition he was not asked about what happened on the night of the alleged rape of Higgins.
Auerbach said he was concerned about that because the point of the interview was they would have to ask him questions about that night in 2019 in Parliament House.
Updated
Auerbach tells court he was appointed Lehrmann’s babysitter
Auerbach has said he was appointed by Channel Seven to be Lehrmann’s “babysitter, minder, looking after him” during a trip of Lehrmann’s to Sydney. He said he was appointed to that role to “build up a rapport” in the hope of securing an interview with Lehrmann for the Spotlight program.
Updated
Lehrmann had cocaine and Googled sex workers, Auerbach says
Auerbach said he went back to a hotel in the city with Lehrmann where Lehrmann took out a bag of cocaine and said he wanted to call a sex worker.
“Mr Lehrmann had over dinner, purchased a bag of cocaine while we were dining at Franca, and when we got upstairs to the room, he pulled that out and started to put it on a plate and then started talking to me about a prospective Spotlight story and his desire to order prostitutes to the Meriton that night and began Googling of series of websites to try and make that happen,” Auerbach said.
Updated
Lehrmann had dinner and drinks with the Spotlight team
Collins is now taking Auerbach to the night he claims Seven’s Spotlight team dined with Lehrmann and his “media minder” John McGowan.
Auerbach said they all had dinner during which Mark Llewellyn had a lot to drink and left his laptop at the restaurant when he went home.
“He had drank quite a bit and so forgot his laptop,” Auerbach said.
Updated
Taylor Auerbach begins his evidence
Taylor Auerbach is now in the witness box and is being asked about his affidavits by Ten barrister Matt Collins.
He is starting his examination in chief and has been handed two white lever arch folders, containing his affidavits.
Updated
Taylor Auerbach expected to be cross-examined by Lehrmann’s legal team
Dr Matthew Collins KC, for Ten, has told the court former Seven producer Taylor Auerbach has sworn four affidavits.
He will be cross-examined by Matthew Richardson SC, for Bruce Lehrmann, on the evidence in his affidavits.
The judge and lawyers for both sides have agreed that Auerbach’s evidence in chief to the court will be via the affidavits already filed, rather than given orally by Auerbach in the room, though he will still be cross-examined in person.
Updated
No conflict of interest, says Giles
Rebekah Giles acted for Higgins in 2020 when she sued then-defence minister Linda Reynolds for calling her former staffer a “lying cow” in remarks to her staff when the alleged rape became public.
Reynolds maintained she did not make the comment in relation to the rape allegation but in response to news reports about her handling of it.
Court returns and Giles tells Justice Lee she is confident she has no conflict of interest.
Updated
Court adjourned to consider potential conflict of interest
The court has adjourned after Justice Lee asked whether Auerbach’s solicitor Rebecca Giles had a conflict of interest.
Lee said Giles had once acted for Brittany Higgins and asked her to check what the dates were for that matter.
Updated
Standing room only
Courtroom 22A of the federal court in Sydney is at capacity this afternoon as media and members of the public fill the gallery to see former Seven producer Taylor Auerbach give evidence. It is standing room only, as people crowd in the doorway to try to watch the proceedings. The live stream of the proceedings on the federal court’s YouTube channel has 12,000 viewers.
Updated
Seven made ‘limited searches’ to comply with subpoenas issued by Channel 10
The federal court has heard Network Seven made “limited searches” to comply with the two subpoenas issued by Network Ten. Seven said in an affidavit it had relied on the “untested assurance” given by Spotlight executive producer Mark Llewellyn that no communications with Bruce Lehrmann existed.
Seven said as a result of the recent publicity it had searched its email systems and found a small number of documents.
Justice Lee said the matter of whether Seven had complied with a subpoena would be dealt with later.
Updated
Taylor Auerbach arrives at Sydney’s federal court due to give evidence
Our reporter Kate Lyons is in the courtroom this afternoon where she will be keeping an eye on proceedings.
Taylor Auerbach arrives to give evidence at the Federal Court in Sydney. pic.twitter.com/vAY2t0vP2M
— Kate Lyons (@MsKateLyons) April 4, 2024
Updated
What we've heard so far today - and what to expect this afternoon
The federal court heard this morning that Network Seven had produced a single piece of communication between Bruce Lehrmann and the Spotlight program in the seven months leading up to the broadcast of an exclusive interview.
Ten’s silk Dr Matt Collins KC said it “beggars belief” that there was only one communication. Justice Michael Lee, who on Tuesday ordered Seven to produce all relevant communications between the network and its source, said he would revisit the question with counsel for the network later in the hearing.
The court also heard from Taylor Auerbach’s solicitor Rebecca Giles that her client alleged he had been subjected to “sustained bullying, antisemitism over a significant period” when he worked as a senior producer at Spotlight.
The former producer left Seven last year and joined Sky News Australia as an investigations reporter.
In his affidavit, he said Sky terminated his employment due to the recent publicity about the case.
Giles has been asked to produce documents relating to the relationship between Seven and the former employee as soon as possible because Auerbach is scheduled to be cross examined at 2.15pm.
Updated
Could Channel Seven be found in contempt and what could the penalties be?
Justice Lee has taken Seven to task for the fact that they have provided a large number of documents to the court today that were not produced prior to the commencement of the trial, in response to subpoenas from Network Ten.
When Seven’s lawyers said they “weren’t proposing to provide an explanation for why the information was not provided originally”, he pushed them and insisted that someone from the network provide a sworn affidavit with an explanation.
Lee said he would wait to see what was in the affidavit before determining if non-compliance had occurred.
“That’s why I want to do this in a formal, measured and appropriate way, so we’ll see what the affidavit says and we’ll work out whether or not you wish to take that any further or whether the court wishes to take it further,” said Lee.
Rick Sarre, emeritus professor of law and criminal justice at the University of South Australia, said that if either Seven or Lehrmann were found in contempt of court over the documents, the range of penalties could range from financial penalties to jail time – though this was very rare.
“Typically a matter like this involving a media organisation, the penalty might be a formal apology, which would be the most effective, probably the most embarrassing thing a media organisation would have to do, rather than a financial penalty, which would not really be a penalty,” he said. “An embarrassing back down and mea culpa would be very effective because it would show that their ethics are under question and it’s ethical issues that are the most important issue for media organisations, not money.”
Sarre said that because broadcast media have statutory licences, the judge could direct the Australian Communications and Media Authority (Acma), which issues the licences, to consider the matter.
In relation to potential contempt of court charges against Lehrmann, Sarre said that while “it’s not unknown that a judge in a serious case of contempt can jail a person from the bench … I’ve never heard of anyone going to jail for the sort of contempt you’re talking about: a breach of the rules.”
More likely, says Sarre, if he was found in contempt, Lehrmann might receive “a serious admonition” from the bench.
However, if Lehrmann was found to have committed perjury – lying from the witness box, or in an affidavit to the court – this was a separate offence and could be investigated by the director of public prosecutions (DPP).
But Sarre said this was highly unlikely. “The DPP would be spending half his life and his next life charging people for lying in courts. More likely he would say, ‘he was found to be unreliable, his evidence was not believed and I’ll leave it at that.’”
Updated
Judge asks Ten lawyer whether journalists were members of media union
Before the break Justice Lee asked Ten’s silk, Dr Matt Collins KC, whether journalists working on The Project were members of the journalists’ union, the Media, Arts and Entertainment Alliance (MEAA).
The Project’s then co-host Lisa Wilkinson and producer Angus Llewellyn both gave evidence in the trial last year.
Wilkinson is the second respondent in the Lehrmann defamation case, along with the first respondent, her employer, Network Ten.
“I didn’t see the evidence of whether or not they were persons who were members of the MEAA, such as to be bound by the code of ethics,” Lee said.
“Can you obtain instructions as to whether they were, because I just want to understand whether or not they were persons who were bound by the code of ethics, or whether I should just entrench that code of ethics as a norm applied which relates to the conduct of journalists generally.”
It is unclear why Lee is asking about the code of ethics now, but he indicated it was unrelated to the earlier hearing about Seven’s Spotlight program.
Updated
Ten made complaint to ACT last June alleging contempt of court, documents reveal
Documents released by the federal court reveal that Network Ten made a complaint to ACT police last June alleging a contempt of court had occurred.
The allegation related to the apparent leaking to the media “on multiple occasions” of “material obtained under an Australian Federal Police (AFP) search warrant and material produced under subpoena by Network Ten to the ACT Supreme Court” in relation to the aborted criminal trial against Bruce Lehrmann in 2022.
In a letter dated 3 November last year, Commander Andrew Bailey from ACT policing wrote: “I understand that Network Ten is concerned [the material] … appears to have been disclosed to the media on multiple occasions. The complaint alleges this disclosure is in breach of the implied undertaking … that applies to documents produced in proceedings under compulsion.”
However, Bailey wrote that there was “no clear underlying criminal conduct which would give rise to a basis for the AFP to investigate the circumstances of the alleged contempt.”
Bailey said it was “matter for a presiding court to determine whether a particular contempt is civil or criminal in nature, and no proceedings have yet been commenced in relation to this matter.”
The ACT police also say in the letter that the AFP have referred the matter to the National Anti-Corruption Commission who are leading an ongoing investigation into whether any AFP members may have been involved.
The hearing has adjourned until 2.15pm today when Taylor Auerbach will be in the witness box.
'Beggars belief' there was only one communication between Lehrmann and Spotlight in run up to interview, court told
Ten’s silk, Dr Matthew Collins KC, has told the federal court it “beggars belief” there is only one communication between Bruce Lehrmann and the Spotlight program over a six-month period in the run-up to the broadcast of his exclusive interview.
“One document evidencing a communication between Mr Lehrmann, the star of the exclusive interview, over a seven month, six or seven month, preparation period,” Collins said.
“That beggars belief, the explanation … one can only imagine what the explanation might be, but your honour might well expect an explanation to be provided in respect of that.”
Justice Lee said he will wait to see what is in Seven’s sworn affidavit before taking further action if there has been a non-compliance by Seven.
“The consequences of non-compliance are well known to anyone,” Lee said.
“That’s why I want to do this in a formal, measured and appropriate way, so we’ll see what the affidavit says and we’ll work out whether or not you wish to take that any further or whether the court wishes to take it further.”
Judge asks for documents relating to Taylor Auerbach’s departure from Seven
Justice Lee has asked Taylor Auerbach’s solicitor to produce as many documents as possible that relate to the producer’s departure from Seven last year by this afternoon.
Rebekah Giles earlier told the court Auerbach left his job as a producer on the Spotlight program after making a claim of psychiatric injury while working at Seven.
Lee said that the documents would need to be produced before Auerbach is cross-examined by Lehrmann’s silk Matthew Richardson this afternoon.
Updated
The hearing has resumed and all parties now have access to the documents Seven produced in response to an order by Justice Lee on Tuesday.
Updated
Court adjourns while Seven subpoenas are photocopied
The court has adjourned until 10.30am while the subpoenas handed up by Seven are photocopied and the parties discuss issues around the scope of the material sought.
It is unclear whether Seven has provided more information that it originally did last year when asked by Ten if Lehrmann had given Spotlight any material from the criminal case in the ACT supreme court.
The possible supply of any material to Seven by Lehrmann is relevant to the defamation case, because Seven and Lehrmann have all denied such material passed between them.
Updated
Auerbach allegedly bullied and subjected to antisemitism when he worked at Spotlight, court hears
Counsel for Taylor Auerbach, Rebekah Giles, has told the court her client alleged he was bullied and subjected to antisemitism when he was working as a producer at Seven’s Spotlight program. He left his job after psychiatric injury, she said.
Giles said she would produce the documents about Auerbach’s claim against Seven later today.
Updated
Seven asked to provide affidavit on why documents weren’t originally produced
The judge has asked Seven to provide an affidavit explaining why the documents provided to the court today were not produced originally in response to the subpoenas from Ten prior to the case beginning.
Justice Lee asked Seven’s lawyers whether they were proposing to provide an explanation for why the information was not provided originally.
A lawyer representing Seven told the court: “We weren’t proposing to provide your honour with any explanation, further searches have been undertaken over the last two days with the benefit of the information Mr Auerbach has provided in his affidavit.”
The judge pushed the lawyers, saying he had been “very punctilious in the case” regarding the subpoenas that had been issued prior to the case beginning.
Seven’s lawyer said: “We don’t want to say anything in relation to that.”
Lee ordered someone from Seven to provide an affidavit explaining why the documents had not been provided earlier.
Updated
Trial reopens for the day
The first day of the reopened defamation case brought by Bruce Lehrmann against Network Ten before Justice Michael Lee has begun in the federal court.
First up is counsel for the Seven Network, who has handed the federal court a bundle of documents in answer to a subpoena from Network Ten in 2023.
On Tuesday Lee ordered the network to return two subpoenas it received in June and August relating to any documents they may have obtained from Lehrmann for the Spotlight program.
In its original response to the subpoena from Ten to produce documents Seven said “there are no written communications or records of communications to produce pursuant to the subpoena”.
Updated
Why has the Bruce Lehrmann defamation case reopened?
Counsel for the respondent, Network Ten, raised questions in an emergency late night hearing on Tuesday about whether parts of Bruce Lehrmann’s evidence in the federal court defamation case may have been false, arguing that “fresh evidence” needed testing.
The main two matters relate to how much Seven spent on wooing Lehrmann and what confidential material from his criminal trial, if any, Lehrmann handed over to Seven.
The allegations by Taylor Auerbach that have grabbed headlines relate to a claim that Seven paid thousands of dollars for massages, drugs, sex workers, accommodation and meals for Lehrmann while they tried to get him over the line for an exclusive interview. The allegations are yet to be tested by the court.
While not illegal, Seven has always insisted Lehrmann was not paid, it only helped with accommodation during filming and Lehrmann only declared the $104,000 in rental accommodation he was paid.
Ten alleges that Lehrmann and Seven have not been honest about the financial benefits received by the interviewee.
The possible supply of any documents to Seven is relevant to the defamation case because Seven, Lehrmann and Lehrmann’s counsel have all denied anything passed between them.
If proven, the evidence could go both to Lehrmann’s credibility and raise questions as to whether he abused the court process, which may affect the quantum of any damages he is awarded should his claim be successful.
Dr Matt Collins KC, for Ten, raised questions before Justice Lee about whether Lehrmann may have given false instructions to his solicitors and whether he may have committed “a very serious contempt by providing material subject to an implied undertaking to Seven”.
Ten alleges in its submission that Lehrmann has “in the conduct of this proceeding, engaged in an extreme abuse of process”, given evidence that was “wilfully false” and “committed a disgraceful contempt that warrants a referral for prosecution”.
Read more here:
Updated
Federal court of Australia to livestream the case on YouTube
This blog will cover major developments during the day. In the interests of open justice and due to significant public interest, the federal court is livestreaming this case.
You can watch the Bruce Lehrmann defamation trial live stream on YouTube here, starting from 9.30am.
How the Bruce Lehrmann defamation case unfolded
In 2021, the Liberal staffer Brittany Higgins made an explosive allegation, claiming she had been raped two years earlier on a minister’s couch in Parliament House.
She made the claim in an interview with news.com.au and a television interview which was aired by Channel Ten’s The Project on 15 February.
The media outlets did not name the alleged rapist, but Higgins’ colleague Bruce Lehrmann later claimed he was identifiable and sued news.com.au, Channel Ten and its presenter Lisa Wilkinson for defamation.
Lehrmann maintains his innocence, and at his criminal trial in 2022 pleaded not guilty to one charge of sexual intercourse without consent, denying that any sexual activity had occurred.
After his criminal trial was aborted in December 2022, prosecutors dropped charges against Lehrmann for the alleged rape of Higgins, saying a retrial would pose an “unacceptable risk” to her health. Lehrmann then pursued Ten and Wilkinson in the courts, resulting in a five-week defamation trial which ran until just before Christmas.
Click below to read more about how the story has played out so far.
Updated
Good morning
Welcome to live coverage of the Bruce Lehrmann defamation trial as it reopens to hear fresh evidence.
Justice Michael Lee is set to hear the new evidence today after allowing Channel Ten to present additional evidence in its defence of the defamation case brought by Lehrmann.
The evidence of a new witness – the former Seven producer Taylor Auerbach – will now be tested today, the day the judgment was originally due to be handed down.
To recap: Lehrmann is suing Lisa Wilkinson and her employer Network Ten for an interview with Higgins that was broadcast on The Project in 2021. He alleges the story, which did not name him, defamed him by suggesting he raped Higgins in 2019.
Lehrmann has always denied the rape allegation and, in a previous criminal trial, pleaded not guilty to one charge of sexual intercourse without consent. He denied that any sexual activity had occurred.
The criminal trial was aborted after it was discovered a juror had conducted their own research in relation to the case.
In December 2022 prosecutors dropped charges against Lehrmann for the alleged rape of Higgins, saying a retrial would pose an “unacceptable risk” to her health.
Updated
