As Bruce Lehrmann re-enters the 'lion's den', his defamation appeal centres on four main points

Australia Broadcast Center

a day ago

When Bruce Lehrmann wanders back into the "lion's den" of the Federal Court of Australia today he won't be looking for his hat.
Rather, he'll be seeking to strike out the truth defence which scuttled his defamation claim against Network Ten and Lisa Wilkinson.
The main target of his challenge is the finding that — on the balance of probabilities — he did rape his former colleague Brittany Higgins in the office of their boss Senator Linda Reynolds, at Parliament House in Canberra in 2019.
It's important to note Mr Lehrmann has always maintained his innocence, and there are no criminal findings against him.
His ACT Supreme Court trial was abandoned because of a juror's misconduct, and the charge was later dropped.
Mr Lehrmann maintains that although he wasn't named in the interview with Brittany Higgins on The Project, he was identifiable, and thus was defamed.
His problem is that "truth" is a defence in a defamation case, justifying actions that would otherwise fall foul of the law.
When Justice Michael Lee found the allegation was "on the balance of probabilities" true, Mr Lehrmann's hopes of pressing his claim for damages stalled.
The appeal has four grounds, including that the justification defence in the judgement was different to the case put forward by Network Ten and the material had not been put to the relevant witnesses, in a breach of procedural fairness.
But even though Justice Lee found the allegation true, he didn't accept the portrayal of events presented on The Project when Ms Higgins said she had said "no" several times "on a loop".
"I have not reached a level of satisfaction that during the sexual act Ms Higgins said, 'no on a loop', and I think it is more likely than not that she did not, or was not, able to articulate anything," Justice Lee said.
"On balance, I find it is more likely than not that she was passive (as she later said, 'like a log') during the entirety of the sexual act."
Mr Lehrmann's case said Ten hadn't established the defence of justification.
The appeal also challenges the assessment the judge made about what was conveyed to an ordinary, reasonable person.
And Mr Lehrmann says the Judge erred when he decided — if he'd succeeded in his case — he "was entitled to a mere $20,000 in damages".
Ten was ultimately awarded $2 million in costs, although the court has stayed that until the appeal is heard.
No-one imagines the money will be collected, since Mr Lehrmann's dire financial situation is now well known.
It was Justice Lee himself who described the controversial case as a "cause celebre" and an "omnishambles".
The public interest never waned from the criminal trial in Canberra, to the Federal Court trial in Sydney in 2023 and 2024.
Indeed, the defamation trial was in part a repeat of the criminal trial, but with more detail.
Both Ms Higgins and Mr Lehrmann gave evidence over several days, the first time the latter was cross-examined on his account of the night in question.
Brittany Higgins, who was not subject to the defamation action, gave evidence over several days.
And Bruce Lehrmann himself gave evidence in person which he hadn't in the criminal trial.
This time around, the journalists who prepared the story, including Lisa Wilkinson, were also called to give evidence.
And then there was the spectacular appearance of the Seven Network's Taylor Auerbach.
The trial was re-opened to hear Mr Auerbach's evidence about how he had acted as a babysitter for Mr Lehrmann, as he was reeled in for his own interviews, with the Spotlight program.
There were allegations of expensive dinners — and invoices for money used to buy drugs and sex workers — as well as the revelation that Mr Lehrmann had been given a lease on a property for a year to secure his exclusive interview.
The Seven Network, which was not part of the defamation proceeding, said it did not reimburse Bruce Lehrmann for expenditure allegedly used to pay for illegal drugs or sex workers.
Ms Higgins was not spared either.
She was forced to reveal to the court that her previously confidential settlement with the Commonwealth was $2.4 million.
It's now well known the night began when Mr Lehrmann joined Ms Higgins and other colleagues for drinks at The Dock bar on the foreshore of Lake Burley Griffin in Canberra in March 2019.
The pair went on to another venue, with two others, before ending up at Parliament House.
Ms Higgins told The Project it was there she was sexually assaulted by Mr Lehrmann. She later told Ms Wilkinson in her interview she woke up "mid-rape", and that she cried and told him to stop at least half a dozen times.
In the interview, she said she'd been left on the couch in a state of undress.
Mr Lehrmann denied any sexual activity took place.
He said they'd gone there to drink whiskey and that he'd been making Question Time notes.
In his judgement, Justice Lee was highly critical of Mr Lehrmann, describing his account of the night as an "elaborate fancy".
"… his attachment to the truth was a tenuous one, informed not by faithfulness to his affirmation but by fashioning his responses in what he perceived to be his forensic interests."
But Justice Lee did not spare Ms Higgins either.
"Ms Brittany Higgins, Mr Lehrmann's accuser, was also an unsatisfactory witness who made some allegations that made her a heroine to one group of partisans, but when examined forensically, have undermined her general credibility to a disinterested fact-finder," he said.
Clearly Justice Lee's judgement supports Ms Higgins claim she was sexually assaulted.
But his findings target other aspects of The Project program, including the claims of a cover-up.
Justice Lee said the notion Ms Higgins had been forced to choose between her career and justice may have won the program a "glittering prize", but when examined properly it was supposition without reasonable foundation.
Justice Lee found Network Ten and Lisa Wilkinson should have done more to examine the inconsistencies in Ms Higgins's account.
These are findings likely to be deployed in this week's appeal.
Network Ten tried hard to avoid the situation altogether, offering to settle with Mr Lehrmann.
But he refused, despite settling with the ABC, as well as with journalist Samantha Maiden and her employer after she was the first to publish an online story about the allegations.