Bruce Lehrmann's appeal against his failed defamation case enters its second day in the Federal Court
Mr Lehrmann sued Network Ten and journalist Lisa Wilkinson over an episode of The Project in February 2021, in which Brittany Higgins detailed her rape allegation, though they did not name the man she accused.
In a judgement last year, Justice Michael Lee found — on the balance of probabilities — that Mr Lehrmann did rape Ms Higgins at Parliament House in 2019, and thus, Network Ten had proven the substantial truth of the allegation.
He maintains his innocence and is seeking to overturn that finding.
On the first day of the appeal, Ms Burrows asked to reserve a portion of her submissions on two of the four grounds of appeal for her reply, but was met with resistance from the bench.
Justice Michael Wigney said a reply could only be used to respond to submissions of another party, not to introduce fresh material.
"If you want to advance submissions in support of this ground … you really need to deal with them now," Justice Wigney said.
The resumption of the hearing today comes after the court agreed to allow Ms Burrows to consider her reply submissions overnight.
Ms Wilkinson's barrister, Sue Chrysanthou, said a substantial amount of material from the defamation trial — which Ms Burrows was not a party to — had been referred to throughout the day.
Earlier, Ms Burrows had argued Mr Lehrmann was denied procedural fairness in the defamation trial because he did not have the opportunity to respond to the judge's "different theory" of exactly how the alleged rape took place.
Both respondents rejected that argument.
They have also filed notices of contention which argue Justice Lee should have found Mr Lehrmann knew Ms Higgins did not consent to sex, rather than being indifferent or reckless.
Ten's barrister Matthew Collins said it was clear from Ms Higgins's level of intoxication that Mr Lehrmann "must have turned his mind to consent and knew he did not have it".
The hearing will resume with Ms Chrysanthou continuing her arguments about the failure of Lisa Wilkinson's qualified privilege defence.
She and the network had argued — even if they could not prove the substantial truth of the allegation — that the broadcast was reasonable, given the circumstances.
Ms Chrysanthou has told the court there was "extreme public interest" in the broadcast going ahead, after two stories earlier that day by Samantha Maiden of News Limited, and discussion of the story in Question Time in both chambers of Parliament.
"[That was] not referred to at all in His Honour's reasons," she said.
She also pointed to a range of supporting evidence Ms Higgins gave the program, including written proof that she had attended the Canberra Rape Crisis Centre.
The hearing in the Federal Court has been set down to run until Friday.
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It was a point that went "round and round in circles," Justice Wigney said, summarising the clear observation that Ms Burrows seemed overwhelmed. Struggling to articulate certain arguments, answer questions clearly, follow page references, or, at times, even find documents, Ms Burrows laboured to advance the 16 pages of written submissions she had lodged months ago. Indeed, she strayed far from them, often lapsing into criminal terminology, such as telling the court there was a case put "against" Bruce Lehrmann that he was required to "defend". Of course, Mr Lehrmann has already been through that process in the ACT, which ended in a mistrial with no verdict and no criminal findings against him. But anyone who heard Ms Burrows's description of Mr Lehrmann's appeal grounds could be forgiven for forgetting that her client was the applicant — and now appellant — in a civil proceeding. Mr Lehrmann was the one who — to borrow a phrase associated with this case — "made the mistake of going back for his hat". Nor did the civil case require proof of guilt beyond a reasonable doubt. While it was still Network Ten's job to justify its broadcast, establishing the "substantial truth" would suffice. Ms Burrows was up against two of the country's most accomplished defamation specialists in Matthew Collins and Sue Chrysanthou. Her learned friends were friendly enough to recognise that Ms Burrows needed time to review the vast bundles of material from the trial, with which they were innately familiar. Perhaps given that familiarity, they also used the opportunity of the appeal to launch their own contentions with Justice Lee's finding. Network Ten urged the court to find Bruce Lehrmann did in fact know he did not have consent for sex, based on how intoxicated Brittany Higgins was, and his role in encouraging her to drink. Ms Chrysanthou also sought to reverse Justice Lee's decision to dismiss Lisa Wilkinson's qualified privilege defence. She argued the journalist acted reasonably in preparation of the program, going so far as to prepare interview questions from a make-up chair if Mr Lehrmann took the opportunity for a right of reply on the day of the broadcast. Four years and three courts later, Mr Lehrmann has certainly exercised that right. The Full Court of the Federal Court has reserved a decision which could prove to be the end of what Justice Lee described as "an omnishambles".
