The Federal Court has granted Bruce Lehrmann leave to continue his defamation proceedings against journalists Samantha Maiden, Lisa Wilkinson and their respective employers, News Corp and Network 10.
The high-profile case, in which the former Liberal staffer claims he was defamed in interviews with Brittany Higgins airing her rape allegation, had been locked on the question of whether Lehrmann should be granted an extension of time due to his failure to file the proceedings within the usual 12-month limitation period.
Lehrman had commenced the proceedings in February of this year, two years after those interviews were broadcast and published on February 15 2021.
During the interlocutory skirmishes, Lehrmann gave evidence that the reason he didn’t file within time mainly owed to legal advice he received from his criminal lawyer at the time, Warwick Korn, which was to the effect he should refrain from defamation proceedings until potential criminal matters were resolved.
The lawyers for the media outlets fiercely contested this evidence, pointing to a series of inconsistencies in contemporaneous text messages sent and received by Lehrmann on the day news of the allegation broke.
Justice Michael Lee, however, accepted Lehrmann’s evidence that he had not retained a defamation lawyer and that any messages he’d sent to the contrary were lies designed to placate his girlfriend or friends or otherwise paint a rosier picture of the circumstances then confronting him.
“Mr Lehrmann’s attempt to add verisimilitude to his narrative by inventing another practitioner giving defamation advice that evening is elaborate and says something about his level of candour in his dealings with his friends,” Justice Lee said. “But it must be seen through the prism of a man under stress … saying what he thought he needed to say to put the best ‘spin’ on what he perceived to be an appalling situation.”
Justice Lee also accepted Lehrmann’s claim that he had wholly relied on advice from his criminal lawyer not to commence defamation proceedings until the criminal matter was resolved, despite Lehrmann’s promise and subsequent failure to call Korn as a witness.
Given the ample evidence showing Lehrmann was preoccupied with vindicating his reputation, Justice Lee said it was important to question why he chose not to commence proceedings within the limitation period.
“The most straightforward, plausible and overwhelmingly likely explanation is that this was consistent with heeding Mr Korn’s advice,” he said. “What’s critical is that despite his interest, Mr Lehrmann chose, on advice, not to commence [defamation] proceedings.”
The court also found that the consequences carried by commencing defamation proceedings while criminal proceedings were still on foot could have prejudiced Lehrmann’s overall defence strategy.
“For Mr Lehrmann to have started defamation proceedings absent the resolution of the criminal allegations would have been for him to take a step into the unknown,” Justice Lee said.
That Lehrmann had been advised to “defer fighting on two fronts was unsurprising”, given his involvement in “one of the highest profile and commented upon prosecutions in recent memory”.
The court indicated that the trial for the two defamation proceedings would be heard together, possibly alongside Lehrmann’s defamation claims against the ABC over a speech it broadcast by Higgins at the National Press Club in February 2022.
The trial will most likely be heard in November or December this year and will last at least four weeks.
Lehrmann, who was charged with Higgins’ rape in August 2021, wasn’t named in either of the interviews with Higgins published or broadcast by Network 10 and News Corp.
His criminal trial was ultimately aborted following juror misconduct and later abandoned altogether due to concerns about Higgins’ mental health.
Lehrmann has always maintained his innocence.
