Journalist Lisa Wilkinson has been granted a major win in her battle with Network Ten over who will pay millions of dollars worth of defamation proceedings legal costs.
"It seems to me plain beyond peradventure, in all circumstances, it was reasonable for Ms Wilkinson to retain separate lawyers," Justice Michael Lee said in the Federal Court on Wednesday afternoon.
"This is not a case where Ms Wilkinson acted unthinkingly in retaining separate representation."
Before Justice Lee delivered his judgment, counsel for Ten, Robert Dick SC, said the television network no longer contended it was unreasonable for Ms Wilkinson to hire her own legal team.
It will only press the "scope of the indemnity".
Barrister Michael Elliot SC, representing Ms Wilkinson, said Ten had returned to its original position from months ago.
"This is not just a capitulation, it's an embarrassment," Mr Elliot said.
How much of Ms Wilkinson's legal bill Ten will have to pay is set to be determined at the end of the civil action brought forward by Bruce Lehrmann.
In the meantime, Justice Lee ordered Ten to pay the costs of Ms Wilkinson's legal team in the cross-claim proceedings.
Hung out to dry
Ms Wilkinson has said she felt hung out to dry by Ten after the fallout from a controversial Logies speech approved and encouraged by her employer.
She claimed her reputation was "being trashed in the media" before she was eventually dropped as host of The Project months after airing Brittany Higgins allegations of being raped in Parliament House.
The interview would lead Mr Lehrmann to sue Ms Wilkinson and her employer for defamation.
Ultimately, she told the court Ten was self-interested and she did not have faith in the network's ability to legally defend her.
As a result, the high-profile journalist hired her own legal representation and filed a cost claim against her employer last year.
At that time, she claimed it owed her more than $723,000 already racked up defending the civil action brought forward by Mr Lehrmann.
What Ms Wilkinson's legal costs have blown up to remains unknown after the case went to a month-long trial at the end of last year.
Separate legal counsel
Wilkinson has told the court, both through evidence and affidavits, why she sought separate legal counsel from her employer.
She said the decision, including hiring high-profile defamation barrister Sue Chrysanthou SC, stemmed from poor legal advice the journalist received from Ten about delivering the Logies speech which delayed Mr Lehrmann's criminal trial.
Ms Wilkinson also said the felt 'isolated, unprotected and abandoned' by her employer amid the media fallout from the speech.
"I was shocked, embarrassed and deeply disappointed by [Ten CEO Beverly McGarvey's] decision to remove me from The Project," Ms Wilkinson said in an affidavit.
"It signified to me that Ten had no real interest in publicly correcting any of the damage done to me and my reputation, and were now only making it worse.
The journalist said she "begged" Ten to publicly state it had approved her speech.
"I was asking Channel Ten to admit the role that they had played because I was being portrayed in the media as legally irresponsible," Ms Wilkinson said from the witness box on Tuesday.
Ms Wilkinson also said she didn't want to be represented by Ten's defamation barrister, Matthew Collins KC, after he publicly criticised her decision to deliver the speech in question.
Ten lawyer defends advice
On Tuesday afternoon and Wednesday morning, the court also heard from the Ten senior litigation counsel who twice approved the prejudicial speech, including on the afternoon of the Logies.
"I stand by the advice that was given," Tasha Smithies said.
"I am not personally or professionally embarrassed by the advice I provided Ms Wilkinson."
Before leaving the box, Justice Lee pressed Ms Smithies on whether she still held the view the advice okaying the speech was "completely appropriate".
The judge had previously said it was "inconceivable to me that any legally-qualified person" could have seen the speech in question as "anything other inadvisable and inappropriate".
"You understood when the speech was being made, what Ms Wilkinson was doing was lending credence to the complainant, a woman whose courage, whose story, must be believed. Would that be fair?" Justice Lee asked.
Ms Smithies responded: "I would accept that, yes."
Justice Lee: "And you as a solicitor thought that was appropriate to occur by a Crown witness eight days before a criminal trial of a man who's facing a serious criminal charge?"
Ms Smithies: "I think given all the circumstances available, that was the preferred course to her not giving a speech."
The lawyer said the speech was in line with Ms Wilkinson's "clear and unequivocal" support of Ms Higgins in the media and on social media in the months leading up to the trial.
"To deviate from that position in the speech, in my mind, was more prejudicial because it would be saying that she was wavering in her support of Ms Higgins," she said.
The defamation trial
The evidence and submissions heard in the cross-claim this week were also accepted in the principle defamation proceedings against Ms Wilkinson and Ten.
Mr Lehrmann is suing the journalist and her employer over a February 2021 The Project interview with Ms Higgins.
The program did not name Mr Lehrmann as the man accused of raping Ms Higgins but he claims being identified, defamed and "publicly maligned as certainly the most prominent rapist".
Justice Lee has flagged he expects to deliver a decision in the main case in March.
Mr Lehrmann has always denied raping Ms Higgins in the early hours of March 23, 2019, when the pair worked as staffers for Senator Linda Reynolds.
No findings have been made against him.
His criminal trial was aborted due to juror misconduct, with the charge levelled at him later discontinued over concerns for Ms Higgins' mental health.
- Support is available for those who may be distressed. Phone Lifeline 13 11 14; Canberra Rape Crisis Centre 6247 2525.
