The broadcaster Lisa Wilkinson has revealed how she will seek to defend the high-stakes defamation case brought by Bruce Lehrmann.
Her defence, filed on Wednesday, is detailed and relies on multiple arguments, chiefly that the allegation that Lehrmann raped political staffer colleague Brittany Higgins was substantially true.
It sets the stage for another high-profile defamation clash in the federal court.
But how exactly will the case work? Who will give evidence? What does Wilkinson need to do to successfully defend the claim? And how does it differ from Lehrmann’s criminal proceedings?
What is the basis of Lehrmann’s claim?
After the collapse of his criminal trial due to juror misconduct, Lehrmann filed defamation claims against Wilkinson and Network Ten, and News Corp and the Gold Walkley award-winning reporter Samantha Maiden, who were first to break the story of Higgins’s allegations.
He has also threatened to sue the ABC for defamation over its publication of a National Press Club address by Higgins and former Australian of the year Grace Tame, but is yet to file a claim in court.
Wilkinson and Network Ten are being sued over Wilkinson’s interview with Higgins on The Project, which aired on 15 February 2021. They are also being sued over related broadcasts on Channel 10’s website and on YouTube.
Lehrmann alleges the broadcasts carried four defamatory imputations. Chief among them are the suggestions that he “raped Brittany Higgins in Defence Minister Linda Reynolds’ office in 2019” and that he “continued to rape Brittany Higgins after she woke up mid-rape and was crying and telling him to stop at least half a dozen times”.
He has denied the allegations and pleaded not guilty at his aborted trial in the ACT supreme court. Prosecutors did not seek a re-trial due to concerns about Higgins’s mental health.
The first hurdle: time limitation
The first problem for Lehrmann is one of time. Plaintiffs are usually required to bring defamation proceedings within one year of the relevant publication date.
That limitation period has long since passed.
Lehrmann will first need to convince the federal court to extend the limitation period.
This is the first question the court will consider and it will do so before hearing any more of Lehrmann’s case, according to Prof David Rolph, a media law expert with the University of Sydney.
“Limitation period arguments will usually be dealt with first, because if the claim is statute-barred, then there’s no point in dealing with the underlying cause of action,” Rolph said.
“The limitation period that applies for this particular claim requires the plaintiff to prove that it was not unreasonable for them not to have commenced within the one-year limitation period.
“So it’s a high burden for the plaintiff to get over in the first instance.”
Rolph says the obvious argument open to Lehrmann is that if he had begun defamation proceedings prior to his criminal case then the civil proceedings would likely have been delayed until his trial’s conclusion anyway.
Wilkinson’s defence argues the time limitation should not be extended and that it was “not reasonable for Lehrmann to have commenced proceedings” so late.
Michael Douglas, a law lecturer at the University of Western Australia, said the law on defamation limitation periods had changed throughout much of Australia in the period relevant to the Lehrmann case, which could complicate the issue.
He said Wilkinson was arguing that the historical approach to limitation periods should apply.
“It was not that easy to get an extension under the old law, particularly if the plaintiff knew they had been defamed,” he said.
Did the publishers identify Lehrmann?
If Lehrmann convinces the court to give him the extension, he will be free to argue his case.
One element he must prove is that he was identified in the relevant publications. He was not named in the stories and broadcasts published by Channel 10 and News Corp in February 2021.
But he argues he was identifiable regardless of whether he was named. The publishers, he argues, invited viewers to speculate and seek out his identity. He argues his identity also would have been known to political associates, friends and family. He was also subsequently named in the media later in 2021.
Wilkinson’s defence shows she will argue that Lehrmann does not know and cannot admit “that the applicant was reasonably identified by any viewer”. Her legal team, headed by the Sydney defamation barrister Sue Chrysanthou SC, say they “sought particulars of identification from Lehrmann … and those particulars have not been sufficiently supplied”.
The defences: justification and substantial truth
Wilkinson’s defence is the first to be filed of any of the four defendants.
She has indicated she will rely on the defence of justification. In other words, she will argue that the imputation that Lehrmann raped Higgins is substantially true.
Because defamation proceedings are civil matters, rather than criminal, the standard of proof is different.
Civil proceedings work on the balance of probabilities, rather than the higher standard of beyond reasonable doubt used in criminal prosecutions.
Douglas said the burden for making out the substantial truth of the allegations will fall on Wilkinson.
“It will be easier for her to do this than it would have been for a prosecutor to prove the truth of a rape allegation in a criminal trial,” Douglas said.
Higgins has publicly indicated that she is willing to give evidence in any defamation proceedings, although it remains to be seen whether she will be called.
Rolph says the nature and seriousness of the allegation – in this case, a criminal allegation of rape – can influence the arguments around whether the burden of proof has been satisfied, in line with what is known as the Briginshaw standard.
The defences: qualified privilege
The date of the publications mean they cannot attract the new public interest defence available to media companies. That new defence commenced in July 2021, just months after the Channel 10 and News Corp publications. It is being relied upon by Crikey in its high-profile defamation battle with Lachlan Murdoch.
Wilkinson is raising an earlier form of public interest defence. She is relying on statutory and common law qualified privilege defences, which are available to publications that were in the public interest, where journalists and publishers have acted reasonably.
“Qualified privilege can be a tricky defence to get up on – that is why the media argued hard to get a new public interest defence in the most recent iteration of defamation law reform,” Douglas said.
To bolster her qualified privilege defence, Wilkinson has set out her credentials as a journalist, the sources she relied upon, the steps she took to verify and factcheck prior to publication, and the opportunity Channel 10 gave to Lehrmann and others to comment.
She described the stories as concerning “subjects of public importance and public interest”, including the conduct of public servants in parliament, the performance of law enforcement, politicians and public servants, including Lehrmann.
Damages: will Lehrmann give evidence? And were the publishers reckless to the truth?
Lehrmann is arguing that he suffered hurt and harm as a result of the publications.
He is almost certain to have to give evidence in the defamation proceedings on this point, opening himself up to cross-examination by the publishers’ lawyers.
Rolph says it is “very rare for a plaintiff in a defamation proceeding not to give evidence”, but not completely unheard of.
“The reason that it is very rare is that a significant component of the damages is injury to feelings,” he said. “There’s no presumption of injury to feelings, whereas there’s a presumption of injury to reputation.”
Lehrmann is arguing the hurt and harm he suffered was aggravated by the conduct of the publishers. He says the “respondents were recklessly indifferent to the truth or falsity of the imputations” and alleges he was not given a reasonable opportunity to respond.
He raised suggestions that Wilkinson and Maiden were “fighting” over exclusive publication over the story.
But Wilkinson has dismissed both allegations. She says her team gave Lehrmann an opportunity to respond and says she had no contact with Maiden about the allegations, timing of publication, or exclusivity.
