Federal Court Justice Michael Lee must turn his mind to four key questions in Bruce Lehrmann’s defamation case against Network Ten and Lisa Wilkinson.
1. Was Lehrmann identified by The Project?
To succeed in the case, Lehrmann must establish that he was identified when Higgins appeared on Ten’s The Project on February 15, 2021, and accused an unnamed colleague of raping her in 2019 in the office of then-defence industry minister Linda Reynolds, for whom they worked as advisers.
Bruce Lehrmann outside the Federal Court in Sydney in November.Credit: Kate Geraghty
Lehrmann’s lawyers argue the description of the alleged perpetrator allowed “a large, indeterminate number of people” in Canberra and elsewhere to identify him, including by reference to other sources. Ten and Wilkinson dispute this.
University of Sydney professor David Rolph, an expert in defamation law, said it would be enough for a plaintiff or applicant to show that “one person other than themselves saw the broadcast and understood it to refer to them” in order to establish liability.
“However, the number of people who identified the applicant from the broadcast is relevant to the assessment of damages,” he said. A very small audience would warrant a smaller damages award.
Lehrmann called a family friend and two former Liberal staffers to give evidence on this issue.
If Lehrmann cannot establish he was identified, his lawsuit fails at the first hurdle.
2. Has the defence of truth been established?
If Lee finds Lehrmann was identified, Ten and Wilkinson’s chief defence in the case is truth.
Under the truth defence, Ten and Wilkinson are seeking to prove to the civil standard – on the balance of probabilities, meaning it is more likely than not – that Lehrmann raped Higgins.
Brittany Higgins outside the Federal Court in November last year.Credit: Kate Geraghty
While this is less onerous than the criminal standard of proof beyond reasonable doubt, the so-called Briginshaw principle applies in civil cases involving serious allegations and requires courts to proceed cautiously in making grave findings.
If the truth defence is established, Lehrmann loses the case.
3. Has the defence of qualified privilege been established?
In the event the truth defence fails, Ten and Wilkinson are seeking to rely on a defence of qualified privilege, which protects publications of public interest where a media outlet has acted reasonably. This puts the actions of the broadcaster and its star presenter in sharp focus.
Lisa Wilkinson outside the Federal Court in Sydney in April.Credit: Janie Barrett / SMH
Ten and Wilkinson have separate legal representation, and it is possible that Lee will make different findings against the network and its former star presenter. Wilkinson remains employed by Ten but has not appeared on air since 2022.
If the qualified privilege defence is successful, Lehrmann loses the case.
4. If the defences fail, what is the appropriate award of damages?
Should both of the media parties’ defences be rejected, Lehrmann wins the case and Lee must consider the appropriate amount of damages.
Damages for non-economic loss in defamation cases are capped at $459,000, a figure that is increased annually. Lehrmann has also sought aggravated damages, which may be awarded on top of that figure.
Lawyers for Ten and Wilkinson have argued this may be a case warranting an award of zero or nominal damages if their defences fail but the judge also finds Lehrmann lied in his evidence and did not give a credible account of what happened in Parliament House on March 23, 2019.
Legal experts differ on whether zero, as opposed to nominal, damages may be awarded to a successful defamation claimant.
Also Read More: World News | Entertainment News | Celebrity News
