‘No real winners’: Judge rules on multimillion-dollar costs of Lehrmann case
By Michaela Whitbourn
Bruce Lehrmann has been ordered to pay a significant portion of Ten and Lisa Wilkinson’s multimillion-dollar legal costs after a judge found the former Liberal staffer had sued the network and the star presenter for defamation 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 his suit over an interview with Brittany Higgins aired on The Project in 2021.
Bruce Lehrmann leaves the Federal Court in Sydney after losing his defamation case on April 15.Credit: Dominic Lorrimer
But Lee had yet to rule 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.
On Friday, Lee ordered Lehrmann to pay Ten and Wilkinson’s costs in general, including for 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.
The combined legal costs of the case, including of Lehrmann’s lawyers, are estimated to top $10 million.
The judge said at the beginning of his judgment, delivered in Sydney, that there were “no real winners in this litigation”.
Justice Michael Lee found that on the balance of probabilities Lehrmann had raped Brittany Higgins in Parliament House in March 2019.
“Of course, with the predictability of an atomic clock, partisans have focused solely on those parts of the judgment that happen to align with preconceived notions,” Lee said.
“But the reality of mixed findings has also been somewhat obscured in the public statements of the respondents [Ten and Wilkinson] and their submissions as to costs, which advance the assertion that they ‘won’ the litigation and that costs should axiomatically follow the event.”
Lee found Lehrmann’s “unreasonable conduct” justified the partial award of indemnity costs, and said the former staffer “ran a primary case premised upon the fanciful and knowingly false premise” that he was marking up question time briefs on the night Higgins alleged he raped her in Parliament House.
“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.
Brittany Higgins (centre) arriving at the Federal Court in Sydney in December.Credit: Steven Siewert
“He wrongly instructed his senior counsel to cross-examine a complainant of sexual assault, in two legal proceedings, including, relevantly for present purposes, this case, on a knowingly false premise.”
The judge said that this was “misconduct in the running of the case of such a character” that even if he had not been satisfied that Lehrmann raped Higgins but was satisfied sexual intercourse took place, he would have declined to award legal costs in his favour.
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 quantum of the costs order against Lehrmann will be determined at a later date, after being “referred to a referee for inquiry and report”, Lee ordered.
Wilkinson’s costs
Wilkinson, who conducted 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.
Lisa Wilkinson outside the Federal Court after the judgment was delivered last month.Credit: Wolter Peeters
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”.
Appeal deadline
Lehrmann has until May 31 to file any notice of appeal against Lee’s decision dismissing his lawsuit.
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 fallback 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 case, “while not hopeless, was weak”, he said.
“The credulous approach taken as to the allegations pitched by [Higgins’ fiance] Mr [David] Sharaz – and as to Ms Higgins’ credit generally – lacked both rigour and objectivity,” Lee said.
“Contrary to the recent assertions of Network Ten, a publication is not reasonable simply because it turns out to be true in some respects.”
Lee did not allow the media parties to recover the costs of preparing a series of 10 affidavits, on the basis that they did not assist him in making findings in the case.
“Given my time over again, I would have been best assisted by hearing any such evidence orally,” he said of those affidavits.
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