Bruce Lehrmann says he deliberately fabricated conversations with his then lawyer about early plans to take defamation action in the immediate aftermath of public reporting of Brittany Higgins’ allegations.
The federal court on Thursday probed why Lehrmann had taken almost two years, well outside the usual 12-month time limit, to bring a defamation claim against Network Ten, News Corp, and journalists Lisa Wilkinson and Samantha Maiden.
Lehrmann is required to demonstrate it was not reasonable for him to have filed defamation proceedings within 12 months of the publications.
His barrister, Steven Whybrow SC, argued that Lehrmann was acting on prior legal advice from his previous firm, Korn Tlais Defence Lawyers, not to initiate defamation proceedings after the publications.
Lehrmann was called to give evidence about his dealings with lawyer Warwick Korn on 15 February 2021, following the initial story by Maiden in News Corp.
Lehrmann said he did not meet Korn, a criminal lawyer, to discuss defamation proceedings.
“That was not the purpose I engaged Mr Korn for,” he said. “It was for obvious criminal proceedings or an investigation, it was obvious and apparent that that was about to be undertaken.”
He said he did raise the prospect of defamation proceedings during the six-hour meeting with Korn, during which they watched the airing of the story on The Project.
“I was outraged from what I was seeing,” he said.
But he said Korn’s advice was to wait before filing any defamation claim.
“That advice was that defamation proceedings could happen but we needed to wait for the resolution of any criminal proceedings or any investigation.”
But under cross-examination, Lehrmann was shown a series of texts he sent to his then girlfriend and friends from Korn’s office on the night of 15 February 2021.
Lawyers for the media outlets have argued some text messages sent by Lehrmann to his then girlfriend contradict what he now says about the legal advice he was receiving in February 2021, which prompted him to delay any defamation action.
In one message, Lehrmann said he had been advised he could obtain millions in a defamation claim.
“If I’m named tonight, he says I’m up for millions as defamation,” Lehrmann told his then girlfriend, in reference to a story which was about to air on The Project.
Under cross examination by Dr Matt Collins KC, acting for Network Ten, Lehrmann denied that he was relaying words said to him by Korn.
Lehrmann said the text message was an effort to try to placate his then girlfriend.
“I was placating [her] given she was incredibly upset and distraught,” he said.
Collins suggested to Lehrmann that he had “caught you out, haven’t I?”.
Lehrmann responded: “It is hard to recall exactly the nature of the conversations taking place. But what I was putting to [my then girlfriend] was a brave face.”
Other texts show Lehrmann telling others that he had been advised that defamation was a “definite”.
Lehrmann said that was also a fabrication and that he hadn’t received that advice.
In another text, Lehrmann also said: “I’m a pawn, [Warwick Korn] says, as part of a bigger political hatchet job.”
Lehrmann denied Korn had told him that.
Collins said: “You fabricated that part of the conversation?”
Lehrmann responded: “Yes.”
In another message, Lehrmann said that Korn had been taking notes during their meeting.
Lehrmann told the court that that message was also a fabrication.
Collins said: “What possible difference could it make to tell her that Mr Korn was taking notes?”
Lehrmann said he had fabricated the contents of the message to convey that “I had my house in order and everything was gong to be OK”.
In attempting to justify the delay, Lehrmann is also arguing that he held off filing defamation claims because of the prospect of criminal proceedings that hung over him in 2021.
But in another text on 15 February 2021, he suggested he had received advice that he would not face criminal proceedings and that the criminal allegations would “not see the light of a courtroom”.
In another text, he said: “Criminal, he says, is off the cards completely. One, it’s false, and second, they have nothing.”
Lehrmann denied Korn given him advice that he would never face criminal charges.
Collins responded: “Your evidence is that you fabricated a conversation with Mr Korn for the purpose of conveying it to [your then girlfriend]?”
Lehrmann agreed he had fabricated the conversation.
“Rome was burning and I was trying to put on a brave face,” he said.
Collins asked: “So you made up a conversation with a lawyer?”
Lehrmann said: “Yes.”
The day after his meeting with Korn, Lehrmann checked himself into Royal North Shore hospital and was put on 15 minutes observations, the court heard.
Lehrmann told the court he had been “not in a good way, to put it lightly” following the initial stories on 15 February 2021.
He went to another health facility for 12 days then did not return to his house, because he had heard that the media were camping outside his house.
He said stories kept appearing in the media.
“Every time an article would come out, or a Four Corners report or whatever, there was outrage, and it was apparent on social media that people knew it was me and it was a mixture of being upset, angry, and I wanted to fight back against the media,” he said.
Sue Chrysanthou SC, representing Wilkinson, put it to Lehrmann that he had been “acutely aware” that he was in a position to sue for defamation, but did nothing.
“I reject that I was in a position to sue for defamation,” he said.
The hearing continues before Justice Michael Lee later this month.