Bruce Lehrmann could be called to face cross-examination in two weeks’ time to explain why he did not file defamation proceedings against Lisa Wilkinson and Network Ten within the usual 12-month time limit.
The federal court is expected to sit on 16 March for a preliminary hearing in the Lehrmann defamation proceedings, which will focus on the significant delay in his filing of the defamation claim against Wilkinson and Network Ten.
Defamation claims are typically required to be filed within 12 months of the relevant publication. But in this case, Network Ten and Lisa Wilkinson’s interviews with Brittany Higgins and the related publications were published in February 2021, two years before Lehrmann began proceedings.
Lehrmann’s legal team is pushing for the limitation period to be extended.
But Wilkinson and Network Ten’s lawyers have the power to seek leave to call Lehrmann and scrutinise the reasons he has given for the delay.
That path – if allowed by the court – would see Lehrmann give evidence in open court for the first time.
A source close to Lehrmann confirmed to the Guardian that he had received a request to appear and that he would do so without objection.
If Lehrmann’s bid for a time extension fails, his case against Network Ten and Wilkinson will collapse without the court hearing the substance of his claim.
The federal court has previously ruled that defendants in defamation proceedings have the power to call plaintiffs to cross-examine them about their reasons for not meeting the limitation period.
In a key 2021 case also against Network Ten, the full bench of the federal court ruled that the broadcaster had the power to “challenge the credibility of the information” given by the plaintiff on his reasons for delay by simply making a request that he be made available for cross-examination.
“Had Network Ten made such a request and [the plaintiff] failed or refused to call himself without reasonable cause, her Honour could have exercised a power under s 169(1) to order him to be called as a witness or exclude any evidence the subject of the request,” the court ruled.
“It did not do so. Accordingly, his evidence should be considered as unchallenged, albeit subject to an assessment of its weight.”
Lehrmann’s claims against Wilkinson and Network Ten relate to Wilkinson’s interview with Higgins on The Project, which aired on 15 February 2021, and related publications on the network’s website and on YouTube.
Lehrmann alleges the broadcasts carried four defamatory imputations, including that he “raped Brittany Higgins in Defence Minister Linda Reynolds’ office in 2019” and that he “continued to rape Brittany Higgins after she woke up mid-rape and was crying and telling him to stop at least half a dozen times”.
Wilkinson is defending the claim and, should it proceed to trial, will rely on defences of justification and qualified privilege. She is also expected to argue that Lehrmann was not identified in the broadcasts.
He was not named in the initial interview or related publications but says that the media companies invited speculation about his identity and that it would have been known to colleagues and friends and family.
Lehrmann has denied the allegation that he raped Higgins and pleaded not guilty at his aborted trial in the ACT supreme court last year. Prosecutors did not seek a retrial due to concerns about Higgins’s mental health.
Lehrmann did not give evidence in the criminal trial, as is his right, but the court did watch recordings of his interview with police.
Regardless of whether he appears on 16 March, it is highly likely Lehrmann would give evidence later if the matter reaches trial.
Experts say it is very rare for plaintiffs not to give evidence in defamation proceedings, because they need to show that they suffered hurt and harm from the defamatory content.
Lehrmann is also suing News Corp and journalist Samantha Maiden, who first broke the story about Higgins’s allegations.
In his case against Network Ten and Wilkinson, Lehrmann alleges the “respondents were recklessly indifferent to the truth or falsity of the imputations” and alleges he was not given a reasonable opportunity to respond.
Wilkinson has denied that suggestion, saying her team gave him multiple opportunities to respond. She has also outlined the care the reporting team took to fact-check and corroborate with other sources. Wilkinson also denied a suggestion that she and Maiden were “fighting” over exclusive publication of the story, saying she had no contact with the News Corp journalist about the timing of publication or exclusivity.
