‘No real winners’: Judge rules on multimillion-dollar costs of Lehrmann case
The judge who presided over Bruce Lehrmann’s high-stakes defamation case has ordered the former Liberal staffer to pay a significant portion of Network Ten and Lisa Wilkinson’s legal costs after he found Lehrmann had brought the case on a “fanciful” and “knowingly false” premise.
Federal Court Justice Michael Lee indicated earlier this month that he would order Lehrmann to pay some of Ten’s legal costs after it successfully defended Lehrmann’s suit against the network and Lisa Wilkinson over an interview with Brittany Higgins aired on The Project in February 2021.
Bruce Lehrmann leaves the Federal Court in Sydney after losing his defamation case on April 15.Credit: Dominic Lorrimer
Lee ruled on Friday on whether the order would be made on an indemnity basis, which covers about 90 per cent of a winning party’s legal bill, or the ordinary basis, which results in a successful party recouping about 70 per cent of their costs.
He said at the beginning of his judgment, delivered in Sydney, that there were “no real winners in this litigation”.
Lee said Lehrmann “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 [on question time briefs] as to French submarine contracts”.
“Mr Lehrmann defended the criminal charge [brought against him in 2021] on a false basis, lied to police, and then allowed that lie to go uncorrected before the jury,” Lee said.
“He wrongly instructed his senior counsel to cross-examine a complainant of sexual assault in two legal proceedings including, relevantly for present purposes, in this case, on a knowingly false premise.”
Lee ordered Lehrmann to pay Ten and Wilkinson’s costs of their successful truth defence on an indemnity basis. However, he ordered Lehrmann to cover the costs of their fallback qualified privilege defence, which was rejected, on an ordinary basis.
Ten had urged Lee to award indemnity costs, arguing that Lehrmann brought the defamation case “on a deliberately wicked and calculated basis”.
Justice Michael Lee found that on the balance of probabilities Lehrmann had raped Brittany Higgins in Parliament House in March 2019.
Ten said in written submissions that the litigation could be described, “with the benefit of hindsight … as a clear abuse of process aimed at concealing the truth that Mr Lehrmann raped Ms Higgins”.
In support of an indemnity costs order, Ten also argued that Lehrmann had unreasonably rejected a “walk away” offer in August last year under which the proceedings would have been dismissed without any admission of liability and without any costs order.
Lehrmann’s limited means
The court heard Lehrmann has been unemployed since June 2021 and is a law student, and there is a possibility he will be tipped into bankruptcy. It means the costs order is likely to be academic because Lehrmann does not have the financial means to meet it.
The Federal Court heard on Wednesday that Lehrmann had a no-win, no-fee arrangement with his own lawyers, under which he was not obliged to pay their costs unless he won the case.
The combined legal costs of the case, including Lehrmann’s lawyers’ bills, are estimated to top $10 million.
Wilkinson’s costs
Wilkinson, who helmed the interview with Higgins, briefed separate lawyers to represent her in the case, although the court has heard that Ten’s lawyers took the lead on the parties’ successful truth defence.
Given the unlikelihood of Wilkinson recovering any costs from Lehrmann, her employer Ten will pay at least some of Wilkinson’s legal bills under an indemnity covering costs “properly incurred and reasonable in amount”.
Lisa Wilkinson outside the Federal Court after the judgment was delivered last month.Credit: Wolter Peeters
Appeal deadline
Lehrmann has until May 31 to file any notice of appeal against Lee’s decision on April 15 to dismiss his lawsuit over an interview with Brittany Higgins, broadcast on Ten’s The Project on February 15, 2021, and helmed by Wilkinson. He had claimed the report defamed him by suggesting he was guilty of sexual assault.
Lee found Ten and Wilkinson had proven to the civil standard – on the balance of probabilities – that Lehrmann had raped Higgins in Parliament House in March 2019 when they were working as staffers to Liberal senator Linda Reynolds, who was then the defence industry minister. This is lower than the criminal standard of beyond reasonable doubt.
The judge found that the parties would not have been able to rely on a fall-back defence of qualified privilege if their truth defence had not been successful.
Qualified privilege is a defence relating to publications of public interest which requires media outlets and their journalists to show they acted reasonably. Lee found Ten and Wilkinson had not acted reasonably.
He said on Friday that it was not “a close-run thing” and Ten’s conduct was “not justifiable in any broader sense”. The qualified privilege defence had been “weak”, he said.
At a costs hearing after his judgment, Lee said he had “made it perfectly plain” that Ten and Wilkinson fell “well short of a standard of reasonableness” because of the “credulous way” they reported Higgins’ allegation.
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