The federal court has granted Bruce Lehrmann a stay of the $2m costs order made by Justice Michael Lee, allowing an appeal against the dismissal of his defamation suit against Network Ten and Lisa Wilkinson to go ahead.
Justice Wendy Abraham also dismissed Ten and Wilkinson’s application for Lehrmann to pay a $200,000 security for the costs of the upcoming appeal.
In a short hearing on Wednesday Abraham ordered Ten to pay the legal costs incurred by Lehrmann in opposing the costs order.
In April, Lee found Lehrmann was not defamed by Ten and Wilkinson when The Project broadcast an interview with Brittany Higgins on 15 February 2021 in which she alleged she was raped by a staffer.
In her published reasons, Abraham said Lee’s finding that, on the balance of probabilities, “Mr Lehrmann raped Ms Higgins” “is extremely serious” and the appellate process is a “fundamental aspect of the administration of justice”.
“In all the circumstances, I do not accept the respondents’ submissions that there is no public interest, in the relevant sense, in the appeal,” Abraham said.
Abraham said Lehrmann is on Centrelink benefits and penniless so Ten has “no basis for thinking that it will retrieve” the $2m it is owed.
“In that circumstance, it is unclear what the prejudice to the respondents [Ten and Wilkinson] is said to be if the costs order was stayed pending the appeal.”
Abraham said aspects of Ten and Wilkinson’s case had failed at trial and all parties now claimed Lee’s judgment contained errors.
“As the appellant essentially submitted, the finding against him is extremely serious,” she said. “Ms Wilkinson described it as a finding of criminal conduct. The impact on him if he is denied that right is self-evident.”
Abraham said the respondents will incur costs during the appeal which, even if the respondent loses, will likely be unrecoverable.
“Nonetheless, I am not persuaded, given the considerations relevant to the particular facts and circumstances of this case, that an order for security ought to be made.”
Lehrmann’s lawyer Zali Burrows argued in her submission there was a genuine public interest in allowing an appeal and a risk that if the security of costs is granted it may abort any appeal.
The former Liberal staffer was going to represent himself in the appeal but retained the criminal solicitor at the 11th hour.
Abraham said the respondents accept the grounds for appeal “are at least arguable” and that any costs order would be overturned if the appeal succeeds.
If she had allowed the costs order Lehrmann would likely be declared bankrupt, which would affect his prosecution of any appeal.
Lehrmann was not in court for the hearings or the decision. Burrows said her client was too “scared” to attend court since becoming “arguably Australia’s most hated man” and the publicity surrounding the defamation trial had “smashed” his mental health.
Lehrmann has always denied the rape allegation and pleaded not guilty at his criminal trial in the Australian Capital Territory supreme court which was aborted. Prosecutors did not seek a retrial due to concerns about Higgins’s mental health.
