On the day news broke of Brittany Higgins’ allegations of rape at Parliament House, Bruce Lehrmann messaged a friend saying he had retained criminal and defamation lawyers and told his then-girlfriend his advice was he would be “up for millions” — but on Thursday he told the Federal Court neither statement was true.
“Rome was burning,” he said. “I [was trying] to put on a brave face.”
The former federal Liberal staffer commenced defamation proceedings last month against journalists Samantha Maiden, Lisa Wilkinson and their respective employers, Network Ten and News Corp, over interviews with Higgins broadcast and published on February 15 2021.
Lehrmann claims the publications defamed him by implying, among other things, that he was the Liberal staffer whom Higgins alleged had raped her in then-minister Linda Reynolds’ office in 2019.
Having failed to file the proceedings within the usual limitation period of 12 months, however, Lehrmann has been forced to seek an extension of time.
His application turns on whether it was reasonable for him to file within time in light of his mental health and legal advice he’d received when Higgins’ allegations surfaced, which he claims cautioned against civil action before any potential criminal matters were resolved.
Under lengthy cross-examination on Thursday, it was put to Lehrmann that a series of contemporaneous text messages sent and received by him on February 15 2021 were at odds with the nature of the legal advice he claims he was given.
Matthew Collins KC, acting for Network Ten, said that the messages showed Lehrmann, contrary to his claim, must have been aware of the limitation period given he’d retained a defamation lawyer on the recommendation of his friend, Tahlia Robertson.
“I’ve got two lawyers now,” Lehrmann said in one text to Robertson late that evening, after having phoned her earlier that day.
She responded “I bet your lawyer is thanking me now,” to which he replied “You have no idea.”
But Lehrmann gave evidence that his text messages to Robertson were only partially true, saying he had fabricated the part about having retained a defamation lawyer.
Pressed on why he would mislead Robertson, Lehrmann said he wanted to “portray an image that everything was under control … that my house was in order”.
He then denied Robertson had recommended any defamation lawyers to him at all, claiming he had merely requested the names of some criminal lawyers — despite having found one in Warwick Korn — because he was “seeking multiple options”.
When asked whether Robertson had assisted him in this way by providing a name or names of a criminal lawyer, Lehrman said “I don’t believe so.”
This prompted Justice Michael Lee to interrupt the cross-examination to ask Lehrmann what he thought Robertson meant to convey by her words “I bet your lawyer is thanking me now”.
“I don’t have a recollection for the context of that conversation,” Lehrmann said. “I’m not sure.”
Collins put it to Lehrmann that he’d been “caught out”: “You sought out a recommendation, [you had] taken up the recommendation, she said you should be grateful, and you said ‘yes’.”
“No,” said Lehrmann.
The court also heard Lehrmann had formally engaged Korn as his criminal lawyer that afternoon, with the two spending over six hours together at Korn’s office discussing his legal position, checking media and Twitter and watching The Project‘s broadcast of Wilkinson’s interview with Higgins at 6.30pm.
From 5.06pm, Lehrmann sent a series of texts to his then-girlfriend, telling her that Korn had told him he would be “up for millions as defamation” if named in the broadcast.
“Warwick doesn’t think I will be named … If I am, then Channel 10 and the department of finance are up for a lot of money,” the messages said.
Some further messages from Lehrmann ensued, saying Korn had told him criminal proceedings were “off the cards completely” but that there “may be civil [defamation] proceedings”.
He also told her that Korn was going to act pro bono for him.
Under cross-examination, Lehrmann said that while it was true Korn had said there would be no fee and that defamation proceedings were possible, it wasn’t true that Korn had told him the possibility of criminal proceedings were remote or non-existent.
“So, your evidence is that you told the truth and then fabricated …. You fabricated a conversation with a lawyer. These messages are a mixture of fabrications and truth?” Collins said.
“Yes,” Lehrmann replied, explaining he did so to placate his girlfriend.
The court also heard Lehrmann had kept a notebook on his “fight back against the media”, which contained “rough notes” on actors Geoffrey Rush and John Jarratt and various other details on media reporting.
Noting that both Rush and Jarratt had been involved in separate, high-profile defamation proceedings involving allegations of sexual assault, Wilkinson’s barrister Sue Chrysanthou SC put it to Lehrmann that he knew it wasn’t necessary to wait for any criminal proceedings to resolve before commencing defamation proceedings.
“You were aware in March 2021 that you were in a position to sue for defamation,” Chrysanthou said.
Lehrmann responded that while he “wanted to” sue for defamation then, his “legal advice was not to”. He also claimed he lacked the “financial capacity to run a defamation action” at that time.
The court heard Lehrmann had also kept “rough notes” containing the names of journalists Rosie Lewis from The Australian, Alexandra Smith from The Sydney Morning Herald and Daily Telegraph columnist Vicki Campion.
Lehrmann denied he had recorded their names because he was contemplating defamation action. “I noted them down because I was outraged,” he said.
Under cross-examination by News Corp’s barrister Renee Enbon KC, it was put to Lehrmann that he had asked a person called John Macgowan, whom he identified as “media John” in his notes, for advice about defamation proceedings and a broader public relations strategy in February and March 2021.
Though Lehrmann conceded Macgowan was “assisting in some way”, he denied he’d “engaged” Macgowan to act in that way, describing him as a “close personal friend”.
He also denied Macgowan had arranged a defamation lawyer for him.
“Is it a coincidence that you referred to two lawyers after having a conversation with [Macgowan]?” Enbon said.
Lehrmann said: “There was no defamation lawyer.”
“So, you maintain that you invented having a defamation lawyer?” Enbon said.
“Yes, that’s my evidence,” he replied.
The media outlets are relying on the defences of truth and qualified privilege.
Neither the Project interview nor the News Corp article named Lehrmann, who was later charged with Higgins’ rape in August 2021. The case went to trial but was aborted following juror misconduct and later abandoned altogether due to concerns about Higgins’ mental health.
Lehrmann has always maintained his innocence.
