It was reasonable for Lisa Wilkinson to retain separate lawyers to represent her in a defamation trial brought against Network Ten and its high-profile presenter, the federal court has ruled.
“This is not a case where Ms Wilkinson acted unthinkingly in retaining separate representation,” Justice Michael Lee said on Wednesday.
“In any event, it seems to me plain beyond peradventure that in all circumstances it was reasonable for Ms Wilkinson to retain separate lawyers.”
The former Project presenter filed a cross-claim against Ten over a dispute about payment of more than $700,000 in legal costs in the Bruce Lehrmann defamation case.
Wilkinson and Ten are co-respondents in the case in which Lehrmann says he was defamed by a rape allegation made by Higgins on Ten’s The Project. Lehrmann was not named but says he was identifiable.
Wilkinson hired her own barrister, Sue Chrysanthou SC, to represent her legal interests in the defamation trial after losing faith in her employers.
“That was my primary concern and it was becoming increasingly obvious to me that my concerns were different to Network Ten’s,” she told the court on Tuesday.
Before Justice Lee delivered his decision, Network Ten silk Robert Dick SC said the broadcaster no longer argued Wilkinson could not retain her own legal team but it did take issue with the scope of the costs.
The exact amount Ten has to pay will be determined after the judgement is delivered in the case brought by Lehrmann, which could come as early as next month.
Michael Elliot SC, for Wilkinson, said his client had been “vindicated” by the “capitulation” by Ten at the 11th hour.
“We say that what Ten has done today is to retreat to the position it actually had on the 24th of March,” Elliott said.
“This is not just a capitulation, it’s an embarrassment, under which we have been led on a merry dance right back to where we started almost a year ago.”
Justice Lee said it was “entirely unexpected” that he had to rule on a cross-claim in the defamation trial and it had given him “some insight into how the sausage has been made”.
Letters, emails, texts and legal advice between Ten and Wilkinson’s legal teams have been laid bare in the federal court, including that the network had cleared Wilkinson’s Logies speech as “all good” and “OK” but failed to reveal that publicly.
Network Ten’s head of litigation, Tasha Smithies, agreed with Justice Lee when he asked her if she understood that Wilkinson was relying on her “to warn her if there were any risks associated with the speech?”.
“You, as a solicitor, thought that that was appropriate to occur by a crown witness eight days before a criminal trial of a man who’s facing a criminal, a serious criminal charge?” Lee asked.
“I think given all the circumstances available, that that was the preferred course to her not giving a speech,” Smithies answered.
“Thank you,’’ Justice Lee said.
Justice Lee said one of the “certain complications along the way” in the cross-claim included an objection by lawyers for Higgins to the retention of Chrysanthou by Wilkinson.
He said a letter to Network Ten’s external lawyer Marlia Saunders from Higgins’ lawyer, Leon Zwier of Arnold Bloch Leibler, saying he wouldn’t work with Chrysanthou was “quite extraordinary”.
“For the avoidance of any other misunderstandings, Brittany has instructed me not to assist lawyers and Counsel currently retained by Lisa Wilkinson to defend civil claims commenced by Lehrmann against Lisa Wilkinson,” Zwier said in the letter filed in the federal court. “I am not prepared to work with Lisa’s current senior Counsel, under any circumstances.”
Justice Lee said if he had received such a letter when he was a solicitor he would have replied “How dare you say who can represent my client?”.
Ten executive vice-president Beverley McGarvey sent Wilkinson a list of “suitable” legal representatives.
Justice Lee accepted that Wilkinson had taken legal advice on her Logies speech and agreed it was “a very different scenario from self indulgently getting up and saying what’s on top of their head”, as he had initially thought.
