Facing the Federal Court today, former Liberal staffer Bruce Lehrmann will attempt to overturn the findings of his drawn out defamation case against Lisa Wilkinson.
Lehrmann will allege that he was unfairly treated by Justice Michael Lee when he found in April 2025 that, on the balance of probabilities, Lehrmann raped Britany Higgins in Parliament House when the two worked in Linda Reynolds’ office together back in 2019.
Appearing in front of the Full Court of the Federal Court, comprising Justices Michael Wigney, Craig Colvin and Wendy Abraham, the appeal will take place over the next three days.
Wilkinson, made headlines after an interview on Network Ten’s The Project, which did not explicitly name Lehrmann, claimed that Higgins was raped on that fateful night. She will also ask the appeal court to overturn part of Justice Lee’s judgment, challenging his findings that her conduct in relation to the story was unjustifiable and improper.
At the conclusion of the case that is believed to have cost more than $10 million, Lee broke down his 300-plus page verdict, where he referred to the trial as an “omnishambles” in which Lehrmann told “deliberate lies” and Higgins was “also an unsatisfactory witness” who made claims that were not backed up.
“Only one man and one woman know the truth, with certitude, of what happened,” he said, adding that those two people were, “both, in different ways, unreliable historians”.
Justice Lee found that Lehrmann had lied about not providing material to Network Seven, ultimately undermining his credibility.
“His representations and evidence to the contrary were false to his knowledge on a serious matter, and this conclusion fortifies my assessment as to his general credit”.
Higgins, he said, “made some allegations that made her a heroine to one group of partisans. When examined forensically (those allegations) have undermined her general credibility”. But he found her “credible” in her recollections of what happened that night in Parliament House.
Despite escaping the trial relatively unscathed, Network Ten was not exempt from Lee’s judgement. Lee said that Ten was aware of the “unreliability of the main source” and claimed that attempts to reach Lehrmann for contact were unsatisfactory.
He declated that The Project’s former star had demonstrated “a lack of candour” in the witness box and was highly critical of the program’s suggestion that the rape had been the subject of a cover-up, hushed up to avoid a political scandal in the lead-up to a federal election.
Taking all of this into account, Justice Lee declared that, on the basis of probabilities, Lehrmann did rape Higgins in Parliament House on that fateful night in 2019. Lee claimed that Lehrmann was “hellbent on having sex with a woman he found attractive” and was aware that Higgins was intoxicated and, therefore, not in a state to provide consent.
Lehrmann continues to deny all allegations.
Lehrmann who is reportedly unable to afford a barrister and will be represented by solicitor Zali Burrows, now argues that Lee wrongly created his own version of what happened inside Reynolds’ office, a version inconsistent with the evidence of both himself and Higgins.
Burrows, told the court the judge failed to consider the possibility that Higgins’ case was not proven.
“The fundamental error … was that the judge had regarded himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other as virtually impossible, and failed to consider the third possibility which was open to him, of simply finding the claimant’s case not proved,” Zali Burrows argued in a written submission to the court.
“The credit of Ms Higgins and Mr Lehrmann, the two key protagonists in this case, was the central issue which ultimately animated the findings of fact made by His Honour,” she said.
Burrows claimed that Justice Lee “derived his own case theory as to the facts, creating the difficulty that his case theory had never been advanced by Ms Higgins in her evidence … and nor was it ever put to Mr Lehrmann in cross-examination.”
In a notice of contention, Wilkinson has claimed that Lee made more than 50 errors in the case, both in relation to his findings and about the alleged rape of Higgins.
Her lawyers have dismissed Lehrmann’s submissions as ‘entirely misconceived’, insisting they always argued he either knew Higgins had not consented or was reckless as to whether she did. They note Lehrmann’s complete denial of sexual contact meant there was no unfairness in not putting that theory directly to him in cross-examination.
“Given his emphatic denials of sexual intercourse or any similar intimate interaction whatsoever, there was no lack of fairness in not putting to Mr Lehrmann that he was reckless to Ms Higgins’ consent when he had had sexual intercourse with her,” Wilkinson’s lawyers claimed.
Sue Chrysanthou SC, who spoke candidly about Australia’s defamation laws at Cairns Crocodiles, will once again represent Wilkinson.
Network Ten will not join Wilkinson’s bid, choosing to lodge its own notice relying on only two grounds – that Lee should have found that Lehrmann knew Higgins did not consent to having sex, and that he ought to have found that if it had been necessary to award damages.
Matt Collins KC will represent Network Ten.
At the heart of the appeal will be Ten and Wilkinson’s truth defence. The judges are being asked to decide whether Justice Lee’s finding that Lehrmann acted in ‘reckless disregard’ of Higgins’ consent was enough to justify the truth of Ten’s broadcast.
If Wilkinson and Ten cannot succeed on truth, the court will turn to whether they acted reasonably. Her legal team says Justice Lee overlooked the fact that Samantha Maiden had broken the story 11 hours earlier, and that The Project did not name Lehrmann, in assessing whether Wilkinson’s conduct was fair.
