Bruce Lehrmann will be free to pursue claims against News Corp and Network Ten after a court granted him an extension to the usual 12-month time limit on defamation cases.
The federal court on Friday ruled that it was not unreasonable for Lehrmann to have delayed bringing his claim against the two outlets, and journalists Lisa Wilkinson and Samantha Maiden, beyond the usual time window for defamation cases.
The decision paves the way for another high-profile defamation trial in the federal court, with the four defendants seeking to prove the truth of their initial reporting of Brittany Higgins’ allegation of rape.
The trial will take place on 20 November and last for 20 days, and the court has raised the prospect of using a jury, saying such a course might promote “the ends of justice, including public confidence in the resolution of these disputes”.
The trial could also now include a related defamation claim made against the Australian Broadcasting Corporation for its broadcast of Higgins’ national press club address.
Higgins has previously offered to appear as a witness for the media outlets. Lawyers for the defendants also want Lehrmann to give evidence on oath prior to the trial, saying any other situation would be unfair, given Higgins has already done so in last year’s trial, where she was subject to cross-examination.
Lehrmann is suing the outlets for suggesting he raped Higgins in the office of Linda Reynolds, a former minister and their then boss, in Parliament House in 2019.
But his failure to commence the proceedings for two years after the reports, published in February 2021, placed him well outside the usual time limit.
He argued the delay was not unreasonable and asked the federal court to grant him an extension.
Lehrmann argued he delayed due to earlier legal advice, received just after the initial reporting, which advised him to wait before commencing any defamation proceedings.
He also argued that he delayed bringing the civil claim because of the prospect of criminal proceedings that then hung over him.
The media outlets had opposed Lehrmann’s efforts to extend the time limit. They say the evidence – consisting largely of texts he sent to friends and his former girlfriend – shows he had clearly been contemplating defamation action immediately after the stories were published. The texts also appeared to contradict the suggestion that his lawyers were advising him to delay defamation proceedings.
In messages to his former girlfriend on the day of the publications, he told her his lawyer said he was “up for millions” in defamation and that a there was no prospect of a criminal trial, which he said was “off the cards completely”.
Lehrmann said he had been “fabricating” and misrepresenting the conversations he was having with his lawyer in an effort to reassure his then girlfriend.
“Rome was burning and I was trying to put on a brave face,” he said.
Lee found the text messages were an “insecure foundation” upon which to make findings about what legal advice Lehrmann was in fact receiving.
He found Lehrmann received “express advice” from his then lawyers that he “should defer any defamation proceedings and relied upon that advice”.
Lee said this was one of five reasons why it was “not reasonable in the circumstances for Mr Lehrmann to have commenced actions in relation to the impugned matters within one year”.
“In this case, it would not have been reasonable for Mr Lehrmann to have acted contrary to this [legal] advice,” he said. “As noted above, his priority was to heed the counsel of the solicitor charged to give advice on the problem of most concern to him.
“If he had further funds and the advice was uncertain or hesitant, then no doubt he could have sought further advice of a specialist nature, but I do not consider it is reasonable to expect him to have acted contrary to the advice given to him at a time when his resources and energies were being directed to resolving the criminal allegations.”
Lee also found that the case was always one where a prosecution was a possibility, despite Lehrmann attempting to “paint a contrary and rosier picture” in his text messages.
He said Lehrmann had clearly acted in a way that showed his real priority was dealing with criminal allegations, even before the prosecution began. He said that bringing civil proceedings in the face of potential criminal prosecution risked exposing “Lehrmann to forensic examination of matters bearing upon guilt or innocence, hence prejudicing his defence of the criminal charge”.
“Mr Lehrmann was in the unusual position of directing his energies and resources in acting on advice to maximise his chances of avoiding, and then defending, one of the highest profile and commented upon prosecutions in recent memory,” he said.
Lehrmann denies raping Higgins in parliament house. He pleaded not guilty at a criminal trial, which was aborted due to juror misconduct. A second trial did not proceed due to concerns about the risk to Higgins’ mental health.
The initial reporting of Higgins’ allegations did not name Lehrmann. The four defendants had argued that Lehrmann was not identified in the broadcasts and therefore cannot have been defamed.
Lehrmann is also suing the ABC over its broadcast of a full national press club address by Higgins and Grace Tame.
The ABC, after initially resisting demands to take the video down, has now removed the vision from its YouTube channel.
