A decision in the Bruce Lehrmann defamation case has been delayed after a judge agreed to hear fresh evidence at the eleventh hour.
Network Ten's sensational request to reopen its defence case was announced earlier this week, just a few days before Justice Michael Lee was set to deliver his long awaited judgement on Thursday morning.
Matthew Collins KC, representing Ten, described the network's ultimately successful application as "unusual and exceptional".
Mr Lehrmann is suing the broadcaster and journalist Lisa Wilkinson over a 2021 The Project interview which aired Brittany Higgins' Parliament House rape allegation.
The Federal Court reconvened on Tuesday afternoon to hear arguments about whether Ten's unexpected move should be allowed.
Dr Collins said Ten sought to adduce evidence from former Seven Network producer Taylor Auerbach, who had worked on the Spotlight program.
That evidence, more than 10,000 people watching on the YouTube live stream heard, is relevant to Mr Lehrmann's credit and to the question of abuse of process.
"Mr Lehrman's credit is central to the determination of substantive issues in this case," Dr Collins said.
With Ten allowed to reopen its case and Mr Auerbach likely to be cross-examined this week, the judgment is now set to be delivered by next week at the earliest, Justice Lee indicated.
"I think it's in the public interest to deliver this as quickly as possible," the judge said, noting the further delay was relatively minimal after the more than three months he had spent working on his judgment.
Allegation of leaking evidence
Ten is set to argue Mr Lehrmann breached an implied court undertaking when he allegedly leaked documents from his ACT criminal trial to Seven ahead of exclusive television interviews conducted last year.
Those interviews became a source of controversy after it was revealed Seven had forked out for a year's worth of Mr Lehrmann's accommodation, amounting to more than $100,000, as payment.
The network was stripped of its Walkley Awards nomination for scoop of the year following the revelation.
On Tuesday, Ms Wilkson's defence barrister, Sue Chrysanthou SC, said the court was set to hear further revelations Seven had paid for more of Mr Lehrmann's accommodation but done so under Mr Auerbach's name.
Several questions were also previously raised about how Seven obtained the hours-long audio recording of a pre-interview meeting between Ms Higgins, her partner David Sharaz, Ms Wilkinson and The Project producer Angus Llewellyn.
Mr Lehrmann denied in court leaking the recording and other evidence, including thousands of pages of Ms Higgins' text messages and her phone records, to Seven.
The material was provided to Mr Lehrmann and his legal team in an electronic brief of evidence but much of it was not tendered during his criminal trial and it was expected not to be shared beyond legal proceedings.
Dr Collins said the alleged conduct, if accepted, would amount to an "outrageous contempt of court".
The barrister accused Mr Lehrmann of providing the television network with the evidence to intimidate possible witnesses.
Matthew Richardson SC, representing Mr Lehrmann, opposed the application to reopen the case and said even if the fresh allegation was made out, "it's really lipstick on a pig".
"This stuff is trivial," Mr Richardson said.
The former Spotlight producer
Mr Auerbach has made headlines in recent weeks after he was revealed to be the man who used a Seven Network credit card to book masseuses for he, and allegedly Mr Lehrmann, in late 2022 without company approval.
The procured massages are said to have totalled nearly $3000.
The former Seven producer was reportedly part of the team working to woo Mr Lehrmann into the exclusive Spotlight interviews he would eventually give.
In a statement, Mr Lehrmann denied ever getting the expensive massage and described the allegation as an "untrue and bizarre" story from a "disgruntled" ex-producer.
Mr Auerbach then served Mr Lehrmann with a concerns notice, threatening to sue him for defamation.
The former producer is expected to begin giving evidence in defamation proceedings on Thursday.
The defamation trial
The civil case brought forward by Mr Lehrmann was heard in November and December of last year during a month-long trial.
While the television interview the man is suing over did not name him, he claims being identified and defamed.
In their defence, Ten and Wilkinson have been aiming to prove the rape allegation made by Ms Higgins against her former Liberal staffer colleague is substantially true.
The network and the high-profile journalist have also argued they reported the allegation reasonably, professionally, and did so in the public interest.
Mr Lehrmann has always denied raping Ms Higgins in the ministerial office of Senator Linda Reynolds in the early hours of March 23, 2019.
His criminal trial was aborted due to juror misconduct and the charge of sexual intercourse without consent levelled at him later dropped over concerns for Ms Higgins' mental health.
No findings have been made against him.
- Support is available for those who may be distressed. Phone Lifeline 13 11 14; Canberra Rape Crisis Centre 6247 2525.
