Bruce Lehrmann's lawyer asks defamation appeal for more time to prepare but justices tell her ‘start now'
Sydney criminal solicitor Zali Burrows is representing Lehrmann who is appealing Justice Michael Lee's April 2024 judgment, which found the former Liberal staffer was not defamed by Lisa Wilkinson and Network 10 when The Project broadcast an interview with Brittany Higgins in 2021 in which she alleged she was raped in Parliament House.
Lehrmann 'couldn't afford' his chosen barrister Guy Reynolds for the appeal, the court heard on day one of the hearing on Wednesday.
The federal court judges have already questioned the logic of Lehrmann's grounds of appeal, in particular the claim that he was not given an opportunity to be questioned about the type of rape found by Lee.
Before lunch on Thursday Burrows was called to reply to submissions from Network 10 and Wilkinson, but proceedings were halted when she asked three times if the court could finish early because she wasn't ready.
Justice Michael Wigney conferred with the other two judges on the full bench of the federal court, Craig Colvin and Wendy Abraham, and replied that Burrows had already 'obtained the court's indulgence' to commence her reply to submissions a day later than scheduled and she should start her reply.
On Wednesday Burrows declined to detail all the grounds of appeal, saying she would prefer to address them in her reply. Wigney warned her that this was unconventional and she could not introduce anything new in reply.
On Thursday she asked if she could now reply on Friday morning.
'Well Ms Burrows, we're inclined to require you to commence your reply now, in particular, in relation to your reply to the appeal proper,' Wigney said.
'If I can put it this way, nothing that has occurred this morning has impacted, or could impact, on your ability to reply to those matters.'
Burrows tried again, saying the appeal was set down for three days and 'we still have tomorrow… we were just thinking if we could have a 10.15 start tomorrow we'd be finished before lunchtime'.
Wigney again declined the request, telling Burrows to 'start now' and reminding her she had 'more time over lunch' to sort out any issues she said she had with the transcript.
Burrows did begin speaking but immediately asked for a clarification in respect to a earlier question asked by justice Colvin about a challenge to the underlying findings.
'It seems to me to be a very important and central issue for your appeal,' Wigney said. 'It's your appeal. What are the… do you understand the reference to the underlying facts?'
Wigney said Burrows had been in possession of Ten's written submissions 'for some time, quite clearly' and they list 'in quite simple terms' the underlying facts.
'So you've had plenty of opportunity to consider this issue,' he said.
Burrows came back a third time, asking 'would it be possible if we could have an early lunch and then resume earlier'.
Wigney agreed, adjourning about 10 minutes early.
Before the morning session, the court published written submissions from the appellant and the respondents, including Lehrmann's reply to Wilkinson's notice of contention which challenges Lee's finding that Wilkinson and The Project team had failed in their defence of qualified privilege, known as section 30.
The Project's decision not to name Lehrmann as the alleged Parliament House rapist was used as evidence of the 'reasonableness' of Wilkinson's journalism in her bid to assert qualified privilege.
However, Lehrmann claimed the decision not to name him was a 'crafted strategy' to increase interest in the interview with Higgins.
'Mr Lehrmann does not agree with Ms Wilkinson's assertion it was a factor to consider on assessing reasonableness, that in effect she should be commended for not naming Mr Lehrmann in the program is viewed is disingenuous, and viewed as a crafted strategy,' the reply said.
Not naming him was a ploy to 'maximise the ratings of a story, to achieve an exciting air of mystery akin to a 'whodunnit''.
Lehrmann was charged with sexual intercourse without consent in 2021, and at his criminal trial in 2022 pleaded not guilty, denying that any sexual activity had occurred.
After his criminal trial was aborted in December 2022, prosecutors dropped charges against Lehrmann for the alleged rape of Higgins, saying a retrial would pose an 'unacceptable risk' to her health. Lehrmann has maintained his innocence.
The hearing continues.
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