Bruce Lehrmann will argue he was delayed in launching defamation proceedings against Network Ten and News Corp because of his mental health, the high-profile criminal case against him and due to prior legal advice, a court has heard.
Lehrmann is suing the two media outlets and reporters Lisa Wilkinson and Samantha Maiden in the federal court, alleging he was defamed in stories reporting Brittany Higgins’ allegations of rape in February 2021.
But he faces a potentially significant initial hurdle to his case. Lehrmann is bringing proceedings against the outlets outside the usual 12-month time limit imposed on defamation cases.
His lawyers, led by barrister Steven Whybrow SC, are attempting to convince the court that the time limit should be extended, which would allow his case to proceed. The media outlets are opposing the extension.
On Wednesday, Justice Michael Lee asked Whybrow to give him an early indication of the arguments he will rely on in pursuit of his application to extend the time limit.
The court heard Lehrmann will argue that he was advised by his then law firm as early as the evening of 15 February 2021 to delay defamation action.
He will also seek to argue that the criminal proceedings against him – which began six months later in August, when he was charged – forced him to delay any defamation case in the civil courts.
Whybrow will also raise the mental and physical health of his client after the allegedly defamatory publications.
“The three bases are in accordance with legal advice, the fact that there is or was overlapping criminal proceedings, either pending, anticipated, or in actual existence,” he said. “And to a lesser extent health issues and mental health issues that the applicant was facing as a result of the allegedly defamatory statements and the consequences thereafter.”
Barrister Dr Matthew Collins KC, acting for Network Ten, said the defendants would oppose all three grounds for the delay, including any delay caused by criminal proceedings.
“This is not the simple baseline case where a defendant maintains their right at all times to silence and does not enter into any examination of the merits in any forum, that’s not this case in our submission,” he said.
Collins said this case differed because of interactions with the Australian Federal Police.
Sue Chrysanthou SC, acting for Wilkinson, said there was a significant gap “of many months” between the publications and the charge.
“Mr Lehrmann apparently seeks to rely on his medical condition from time to time and other matters, and from a factual perspective, we wish to challenge those,” she said.
“I’m not sure if your honour has had a chance to review the evidence relied upon in support of the application, but it does seem to us to be quite … light on detail in respect of times, dates and in particular legal advice said to be given.”
She cited another case where criminal proceedings were involved, where the plaintiff had put a publisher, in this case the Daily Mail, on notice of potential defamation action and then paused any pursuit of defamation proceedings until the resolution of the criminal case.
Guardian Australia has previously reported that Lehrmann may be called to give evidence at the preliminary hearing to explain the delay, if the court allowed it. That hearing is currently scheduled for next Thursday 16 March.
Whybrow confirmed on Wednesday that his client was available to give evidence.
But Justice Lee indicated that he may not wish for Lehrmann to be cross-examined multiple times, and may instead delay the argument so that it takes place at the same time as the trial.
“I am quite reluctant to be in a situation where people are cross-examined potentially three times,” he said.
The court is expected to hear arguments about whether Lehrmann will be called on 16 March.
