The federal court has ordered Bruce Lehrmann to pay most of Ten’s legal costs from his failed defamation suit against the TV network and Project host Lisa Wilkinson because he brought the case on a “knowingly false premise”.
Justice Michael Lee on Friday said Lehrmann should pay almost all of Ten’s and Wilkinson’s costs on an indemnity basis, except when it came to the failed qualified privilege defence argument, where the network would receive regular costs.
Because of the failed privilege defence, no costs are recoverable for the affidavits of Ten personnel involved in The Project broadcast including Wilkinson, lawyer Tasha Smithies and producers Craig Campbell, Angus Llewellyn, Christopher Bendall, Laura Binnie and Peter Meakin, Lee said.
Costs awarded on an indemnity basis are higher than standard costs and granted in exceptional circumstances.
Lee said he accepted Ten’s submission that Lehrmann “engaged in an abuse of the court’s processes, ran a case based on falsities, and put Network Ten to the cost of defending a baseless proceeding”.
However, the judge added he would describe it differently: “Mr Lehrmann had sexual intercourse with Ms Higgins and yet ran a primary case premised upon the fanciful and knowingly false premise that in the early hours of 23 March 2019 he was preoccupied with noting up details as to French submarine contracts” at Parliament House.
The costs for all parties have been estimated to be between $8m and $10m for the 24-day civil trial which Lehrmann lost.
“In the end, it comes down to the order for costs that does best overall justice in the circumstances,” Lee said.
“On balance, the appropriate exercise of discretion is to make an award that Network Ten recover its costs against Mr Lehrmann on an indemnity basis, except for costs incurred in relation to the statutory qualified privilege defence, which will be recoverable save for the cost of the affidavits to which I’ve referred on an ordinary or party-party basis.
“As to Ms Wilkinson’s costs [she] makes the same points made by Network Ten.”
Lee ordered the parties to provide details by 24 May of the total amount of legal expenses payable.
“In addition to a referee reporting upon the total amount of the indemnified costs, the parties agree that it is consistent with the overarching purpose for the same referee to inquire into and report upon the amount payable by Mr Lehrmann pursuant to the costs order made in favour of the respondents,” Lee said.
Lee also addressed the matter of Wilkinson’s Logies speech which he found last month to be “grossly improper and unjustifiable as amounting to conduct apt to cause disruption to the criminal justice system”.
After the delivery of the judgement a Ten solicitor made “what might be described as a ‘victory tour’” Lee said. He claimed that the speech “presented no difficulty whatsoever”.
However, since Ten has now apologised for the speech made outside court by lawyer Justin Quill the court will take no further action, Lee said.
“This material suggests that (Saul of Tarsus-like) the scales have belatedly fallen from the anthropomorphic eyes of Network Ten,” Lee said.
Network Ten’s legal team had argued Lehrmann should pay all its costs because suing The Project for defamation was “deliberately wicked and calculated” and an abuse of process.
The former Liberal staffer lost the defamation case he brought against Ten and Wilkinson, with Lee finding last month that on the balance of probabilities Lehrmann raped Brittany Higgins on a minister’s couch in Parliament House in 2019.
By all accounts, Lehrmann is jobless, homeless and lacking in significant means to pay Ten’s costs, so having successfully defended the case, the network could still be saddled with the bill.
Lehrmann has always denied the allegation and pleaded not guilty at the criminal trial of the matter which was aborted due to juror misconduct.
