Bruce Lehrmann’s defamation proceedings took a “remarkable” twist on Thursday, when the court learned the former Liberal staffer had, at the eleventh hour, changed his mind about calling his original criminal lawyer to give evidence.
The high-profile case, in which Lehrmann claims he was defamed by journalists Samantha Maiden, Lisa Wilkinson and their respective employers News Corp and Network 10 over interviews with Brittany Higgins published February 15 2021, is currently locked on the question of whether Lehrmann should be granted an extension of time due to his failure to file the proceedings within the usual 12-month limitation period.
Last week Lehrmann claimed the reason he didn’t file within time principally owed to legal advice he received from his former criminal lawyer Warwick Korn on the day Higgins’ explosive allegations were published, which he said was to the effect that he shouldn’t pursue defamation proceedings until any potential criminal matters were resolved.
It was evidence fiercely contested by lawyers for the defendants, who pointed to a series of contemporaneous text messages sent and received by Lehrmann that were, they said, at odds with that explanation.
In those messages, Lehrmann tells his then girlfriend that Korn had advised he would be “up for millions as defamation” and that a criminal prosecution was “off the cards completely” but that he may have “civil [defamation] proceedings”.
When cross-examined, Lehrmann said he’d lied in those messages because “Rome was burning” and he was trying to placate his girlfriend.
He also denied Korn had taken any notes during their six-hour conference on the day the Higgins story broke — despite telling his girlfriend via text that “Rick [Korn] keeps taking notes … [he’s] very professional” — and told the court he’d lied to his friends about having retained both a criminal and defamation lawyer.
During the hearing last week, Lehrmann sought an adjournment for the sole purpose of calling Korn to give evidence as to the precise legal advice he’d given Lehrmann, which resulted in the court making an order requiring Korn to file an affidavit by 5pm Tuesday March 14.
But one hour before that deadline, Lehrmann’s lawyers advised that Korn wouldn’t be giving evidence after all.
“[Korn is] a solicitor, he must have a recollection of what advice he would have given,” Justice Michael Lee said on Thursday. “I was told he was going to be called, [and then] he wasn’t called.”
Describing the about-face as “pretty remarkable”, Matthew Collins KC for Network 10 told the court it was “obvious what inference” had to be drawn, given Korn’s evidence clearly would have “clarified the veracity or otherwise” of Lehrmann’s evidence.
“Any evidence Mr Korn would have given would not have assisted Mr Lehrmann in relation to what Mr Korn said in the course of their conference [on February 15 2021] and whether he took notes,” Collins said.
The court could therefore “more readily accept” that Lehrmann’s text messages were — contrary to Lehrmann’s oral evidence — an accurate and reliable record of the legal advice he did in fact receive.
“The contemporaneous notes are the proper record of what occurred,” Collins said. “In which case Mr Lehrmann is told he’s got a red-hot defamation case, you’re going to make millions, don’t worry about the prosecution.
“If that’s right, it’s not reasonable for [Lehrmann] not to have taken any steps in relation to defamation and not to have put the defendants on notice about it.”
Collins said subsequent actions taken by Lehrmann during the 12-month period tended to lend weight to this position, including his participation in a voluntary police interview without a lawyer in April, telling his employer in June the rape allegation would amount to nothing, exploring a public relations agent and keeping detailed notes on “friendly journalists” and a “media hit-list” of people he intended to sue.
“He’s in the position of a plaintiff who says, ‘I don’t care about the criminal matter, my priority is defamation’, and then misses the deadline,” he said. “This is the objective evidence.”
In answer, Lehrmann’s barrister Matthew Richardson SC said any inference regarding the last-minute decision not to call Korn as a witness couldn’t be taken “very far” for the reason Lehrmann’s oral evidence ought to be believed.
“This was the first day of what became the most high-profile sexual assault case in the country,” Richardson said. “There’s no reason to believe a competent criminal lawyer would say ‘there’s no possibility of a criminal proceeding’ — it’s just silly.”
Richardson added that Korn’s advice, as described by Lehrmann in oral evidence (that is, that he should wait until any potential criminal proceedings were resolved before pursuing defamation action), could be described as “orthodox”.
“It is obvious if civil proceedings had gone ahead, they could have prejudiced his position,” he said, pointing to the “profound overlap” between the issues in each proceeding.
But Sue Chrysanthou SC, acting for Wilkinson, said the bare assertion that Lehrmann would have suffered prejudice if he’d commenced his defamation claims within time knowing a criminal prosecution was a possibility was false.
“The notion that there’s some generalised or ordinary rule in favour of an extension [of time] because there’s a possibility of criminal charges … [or] when charges have already been laid, is not right,” she said.
Chrysanthou said the case law was replete with examples of people who, like Lehrmann, had been confronted with allegations of sexual assault but nevertheless pursued defamation actions promptly, citing the experiences of actors John Jarratt and Geoffrey Rush as examples, whom Lehrmann had incidentally made reference to in his “media hit-list” notes.
“There’s no demonstration of real prejudice,” she said. “If [Lehrmann] had commenced in time, he had many options: one was to seek an extension of time if needed to do so, another was to serve a statement of claim and seek a stay. A third was proceeding with the claim and if and when it became a problem, then [seek] a stay.”
“Why did he not send a concerns notice within the limitation period or even just a letter of demand? There’s been no explanation for that — and that’s a highly relevant matter.”
It was a position shared by Collins, who likewise told the court Lehrmann could have commenced defamation proceedings and relied on his privilege against self-incrimination or otherwise sought a stay to protect his position.
“That’s what invariably happens,” he said. “I can’t think of a case where there’s been a conflict between a plaintiff and a defendant about the issue.”
The two barristers told the court that even if Lehrmann’s evidence about having lied in his text messages was accepted — meaning he had truthfully relied on Korn’s “advice” — the court would have to ask whether it was reasonable for Lehrmann to have done so in the circumstances.
“If you believe [Lehrmann’s] evidence, he elected not to speak to a civil lawyer knowing that Mr Korn only did criminal defence,” Chrysanthou said. “This is someone who chooses not to consult a defamation lawyer, knowing the difference between civil and criminal — we’re not dealing with someone who is unsophisticated.
“On the other hand, if the text messages are the correct position, he was pursuing the civil claim and he did speak to a civil lawyer” — so he would have been aware of the limitation period.
Neither the Network 10 interview nor the News Corp article on February 15 2021 named Lehrmann, who was later charged with Higgins’ rape in August 2021. The case went to trial but was aborted following juror misconduct and later abandoned altogether due to concerns about Higgins’ mental health.
Lehrmann has always maintained his innocence.
The hearing continues.
