Bruce Lehrmann will ask the appeals court to put aside Justice Michael Lee’s order that he pay $2m in legal fees for his failed defamation suit against Network Ten and Lisa Wilkinson.
The former Liberal staffer was going to represent himself in the appeal but has retained criminal solicitor Zali Burrows at the 11th hour, according to court documents.
Burrows appeared for Lehrmann on Thursday at the first case management hearing before Justice Wendy Abraham.
Asked by Abraham if she would be arguing in court, she said: “Yes, I will be at this stage”.
“Your honour, I also foreshadow there is going to be an application filed by next week seeking a stay enforcement on the cost order from the court below,” Burrows said.
Tim Senior SC, for Network Ten, said Lehrmann had failed to raise the stay application in the federal court at the appropriate time. “It is unfortunate that it’s been made now,” Senior said.
Abraham said the failure to make the application before Justice Lee earlier may “tell against [Lehrmann’s] application ultimately”.
The court ordered Lehrmann, who was not in the federal court hearing in Sydney, to file and serve an interlocutory application seeking a stay of enforcement of order by 1 August and an amended notice of appeal by 29 August.
The court will hear the application in October, alongside an application from Network Ten for Lehrmann to put up $200,000 in security for costs ahead of the appeal.
The Ten application is based on the belief that as Lehrmann is unemployed and without significant means to pay its costs the network could be saddled with the bill.
Lehrmann was ordered to pay most of Ten’s legal costs from the failed defamation suit on an indemnity basis because he had brought the case on a “knowingly false premise”.
Lehrmann’s notice of appeal was filed at the latest possible time, on Friday 31 May. The four-page document mentioned no law firm and was prepared by Bruce Emery Lehrmann. His appeal is based on a claim that he was denied procedural fairness by Justice Lee.
In April, Lee found on the balance of probabilities that he was not defamed by Wilkinson and Ten when The Project broadcast an interview with Higgins on 15 February 2021 in which she alleged she was raped by a staffer.
“In summary, I consider it more likely than not in those early hours, after a long night of conviviality and drinking and having successfully brought Ms Higgins back to a secluded place, Mr Lehrmann was hellbent on having sex with a woman he found attractive” and knew was inebriated, Lee said.
“He did not care one way or the other whether Ms Higgins understood or agreed to what was going on.”
Lee said of Lehrmann’s decision to bring the civil case against Ten and Wilkinson after his criminal trial was aborted: “Having escaped the lion’s den, Mr Lehrmann made the mistake of going back for his hat.”
Sue Chrysanthou SC, for Wilkinson, told the court her client does not propose to make any separate security for cost application, given Ten’s application covers Wilkinson.
Wilkinson is seeking more than $1.8m in indemnity costs from Ten after the former Project presenter hired her own legal counsel and won an earlier claim that the network indemnify at least some of the costs.
Lehrmann has always denied the allegation and he pleaded not guilty at the criminal trial of the matter, which was aborted due to juror misconduct and a second trial did not proceed due to prosecutors’ fears for Higgins’ mental health.
