Bruce Lehrmann’s appeal against the federal court ruling that he was not defamed by Network 10 and Lisa Wilkinson is set to be heard on Wednesday.
In April last year, Justice Michael Lee found that on the balance of probabilities Lehrmann raped former Liberal staffer Brittany Higgins in Parliament House in 2019, and that Lehrmann was therefore not defamed when Wilkinson interviewed Higgins about the case on The Project.
The appeal against that finding will be heard over three days before the full court of justices Michael Wigney, Craig Colvin and Wendy Abraham.
Here’s what to know.
What was the defamation case about?
Lehrmann was not named in the 2021 interview on The Project, but later claimed he was identifiable and sued for defamation.
He was charged with sexual intercourse without consent later that year, and at his criminal trial in 2022 pleaded not guilty, denying that any sexual activity had occurred.
After his criminal trial was aborted in December 2022, prosecutors dropped charges against Lehrmann for the alleged rape of Higgins, saying a retrial would pose an “unacceptable risk” to her health. Lehrmann has maintained his innocence.
Lehrmann then pursued Ten and Wilkinson in the federal court, resulting in a five-week defamation trial in 2023.
Lee famously said of Lehrmann’s decision to bring the civil case against Ten and Wilkinson, after his criminal trial was aborted due to juror misconduct: “Having escaped the lion’s den, Mr Lehrmann made the mistake of going back for his hat.”
Why is Bruce Lehrmann appealing?
Lehrmann is appealing on grounds including that the sexual assault described by Lee was “substantially inconsistent” with the violent rape portrayed on The Project, according to submissions to the appeal filed with the court in March.
“The problem is that the broadcast clearly suggests a violent rape, where the complainant was in tears and repeatedly refused consent, of which repeated refusal the perpetrator must have been aware,” the submission said.
“That is quite different from a non-violent rape involving inadvertent recklessness as to whether there was consent.”
Lehrmann’s legal team say he was denied procedural fairness because the case which was found to be true was not put to him in cross-examination.
“He was not cross-examined adequately on issues arising in the truth defence and accordingly, there has been a breach of procedural fairness to the extent we submit must result in the judgment against Mr Lehrmann being set aside,” the submission said.
Lehrmann has also argued the definition of rape was misconstrued by Lee and was not the ordinary person’s understanding of the word.
“The rape described graphically by Ms Higgins included allegations of violence, an assault, called out ‘no’ on multiple occasions and numerous references to an assault and trauma,” the submission said.
“The ordinary reasonable reader would have, particularly in this context, excluded rape by this form of non-advertent recklessness and would probably mean a violent rape with express lack of consent.”
Last October, Abraham granted Lehrmann a stay on $2m in costs he had been ordered to pay Ten, pending the outcome of the appeal.
What does Lisa Wilkinson say?
Wilkinson said in her submissions to the appeal, also filed in March, that she challenged Lee’s finding that she acted unreasonably in broadcasting an allegation of rape.
Lee upheld the defence of truth, but found Wilkinson and Network 10 failed to establish the qualified privilege defence.
That section 30 defence, at the time of broadcast in 2021, was that they acted reasonably and in the public interest, in airing the rape claims in an interview with Higgins on The Project.
In submissions to the appeal, Wilkinson now asserts the public interest defence “should have been found to have been established” in the original judgment.
In documents filed in the federal court, Wilkinson’s barrister, Sue Chrysanthou SC, argued Lee erred in his finding that her client’s conduct in broadcasting an allegation of rape was improper and unjustifiable.
