Lawyers for Network Ten have questioned “how on Earth” it was reasonable for Bruce Lehrmann to sit on his hands and not file a defamation claim for 12 months, despite being told he had a “red hot defamation case”, was going to “make millions” and that he didn’t need to worry about a criminal prosecution.
Lehrmann is trying to convince the federal court to give him an extension to the usual 12-month time limit on bringing defamation claims, blaming the delay on the criminal proceedings, prior legal advice to not immediately pursue defamation proceedings and his mental health.
On Thursday, the court had expected to hear evidence from Lehrmann’s former lawyer, Warwick Korn, about the advice he gave his then client after News Corp and Network Ten first published Brittany Higgins’ allegations of rape on 15 February 2021.
Lehrmann said Korn told him to wait until criminal proceedings were over before filing a defamation claim.
Korn, however, was not called to give evidence on Thursday, a change described as “remarkable” by Network Ten’s lawyers.
Lehrmann and the media outlets instead made their final arguments to Justice Michael Lee on whether the 12-month time limit should be extended.
Matthew Collins KC, representing Network Ten, said it was clearly not reasonable for Lehrmann to fail to file the defamation claim within one year.
Collins said a series of text messages to his then girlfriend and friends, sent from Korn’s office on the day of the initial publications in News Corp and Network Ten, show he had been advised not to worry about a criminal prosecution and told he could make millions of dollars in a defamation claim.
“If I’m named tonight, he says I’m up for millions as defamation,” Lehrmann told his then girlfriend in one message.
In another text, he suggested he had received advice that he would not face criminal proceedings and that the criminal allegations would “not see the light of a courtroom”.
He said Lehrmann was effectively told “you’ve got a red hot defamation case, you’re going to make millions, don’t worry about the prosecution”.
To not file a defamation claim in such circumstances, Collins said, was clearly not reasonable.
“You’ve got a plaintiff who says I’m primarily focused on my reputation, I’ve been told there won’t be a prosecution, I’m exploring getting a PR agent, I’m exploring talking to the media … yet doesn’t send a concerns notice, doesn’t even put the defendants on notice of a claim,” Collins told the court.
Lehrmann has since said he never received any such legal advice. He says the texts were fabrications, designed to put on a “brave face” and reassure his then girlfriend and friends.
Collins said Lehrmann’s claims about fabricating the texts were “inherently unbelievable”.
Earlier, Matthew Richardson SC, representing Lehrmann, argued that the criminal charges laid against his client in August 2021, and the prospect of those charges, meant that Lehrmann would have been “exposed to prejudice” had he brought defamation action within the usual one-year time limit.
Richardson said that risk of prejudice is reason enough for Lehrmann not to have brought a defamation claim within 12 months.
If Lehrmann had brought defamation claims, it may have required him to give evidence in civil proceedings prior to any criminal trial, compromising his right to silence, Richardson said.
“Our position is that commencing civil litigation on almost entirely the same issues would have exposed him to prejudice,” he said.
But both Network Ten and Wilkinson rejected that he could have been exposed to prejudice.
Sue Chrysanthou SC, representing Wilkinson, questioned why Lehrmann had not even sent a letter of demand or concerns notice to media outlets for two years.
The court heard Wilkinson didn’t receive notice of the defamation claim until the day after it commenced. Other publishers, including News Corp, Network Ten and Samantha Maiden, received notice of the claim on 16 December.
That indicated that Lehrmann had never wanted to settle with Wilkinson, Chrysanthou said.
“He always intended to sue her, she was the top of his list,” Chrysanthou said.
Chrysanthou said there was no explanation for Lehrmann not sending a letter of demand or concerns notice to any of the publishers for almost two years after the initial publications.
“Why did he not send a concerns notice ever, that has not been explained, within the limitation period, why was no concerns notice sent? Or even just a letter of demand sent to my client saying ‘I intend to sue you, be on notice’,” she said.
“There has been no explanation for that and that is a highly relevant matter to the exercise of the discretion [to extend].”
Collins said any prejudice could have been avoided by simply delaying the defamation trial until after criminal proceedings concluded, something which was commonly done.
Even if he had to give evidence in a defamation trial first, Lehrmann could have been given certificates preventing his testimony from being used against him in criminal proceedings.
Richardson argued that it was clear that federal police were actively investigating the allegations well before charges were laid in August 2021, taking the court to statements made by police in March of that year.
Richardson also said it was implausible that a lawyer would have ever advised Lehrmann that he wouldn’t have faced criminal prosecution, given what had appeared in the media.
He said no competent lawyer would have told Lehrmann such a thing.
“It’s just silly, in my respectful submission, that something like that would have been said,” he told the court.
Chrysanthou said there were many high-profile examples where public figures had immediately filed defamation claims after being accused in public media reporting of criminal conduct, which gave rise to the possibility of criminal proceedings.
“The notion that there’s some generalised or ordinary rule in favour of extension because there’s a possibility of criminal charges cannot be right and the notion that there’s some ordinary rule when charges have already been laid is not right either,” she said.
Lehmrann denies raping Higgins and pleaded not guilty at an earlier criminal trial, which was aborted due to juror misconduct. A retrial was not pursued due to concerns about Higgins’ mental health.
The two-day hearing concluded late Thursday afternoon. Lee will hand down a decision at a later date.
The court heard that if the case does proceed to trial, it would take many months. Lehrmann’s legal team said their limited resources mean they would not be ready to proceed in August. The trial would take at least four weeks, the court heard.
