Lisa Wilkinson is urging the appeal court to reject Bruce Lehrmann’s attempt to overturn his defamation loss, asserting that he experienced no unfairness during the multimillion-dollar trial.
In submissions filed to the Federal Court, lawyers for the former Network 10 journalist and presenter said the grounds for appeal were “without merit”.
Lehrmann’s legal battle stems from an interview aired on Network Ten’s The Project back in 2021. The segment, hosted by Lisa Wilkinson, featured Brittany Higgins, a former parliamentary staffer who alleged that she had been raped by Lehrmann in Parliament House in 2019. Although Lehrmann was not directly named in the interview, he argued that the broadcast clearly identified him and implied he was guilty of the crime.
As a result, Lehrmann, who has always maintained his innocence, initiated defamation proceedings against both the broadcaster and Wilkinson.
Last April, Justice Michael Lee declared that, on the basis of probabilities, Lehrmann did rape Higgins in Parliament House on a 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.
Based on this, Justice Lee dismissed the case, siding in favour of Network 10 and Lisa Wilkinson.
In May, he filed an appeal against Lee’s decision. His lawyer, Zali Burrows, claimed that Lehrmann was denied procedural fairness because Lee made findings about the nature of the rape that contradicted Ten’s portrayal of it as a “violent rape,” during which Higgins reportedly said “no” at least six times.
The judge did not agree that Higgins repeatedly said “no,” instead concluding that she was likely “passive” during the sexual encounter. He also found that Lehrmann acted recklessly regarding consent, as he “did not care one way or another” whether an intoxicated Higgins “understood or agreed to what was happening.”
Burrows argues that procedural fairness required further questioning of Lehrmann in court before the judge could make a determination about recklessness.
In October, Lehrmann crossed a major hurdle in his attempt to reopen the proceedings. The Federal Court declined to order Lehrmann, who is now unemployed, to pay $200,000 in security as requested by Network Ten and journalist Lisa Wilkinson to cover some of the costs of the legal battle. This decision paved the way for Lehrmann to move forward with his challenge.
Burrows argued that he could not afford to pay the requested $200,000 in security for costs, as he is currently unemployed and reliant on Centrelink income. Burrows contended that the application for security was a “bullying tactic,” an accusation that Network Ten has denied.
Justice Wendy Abraham dismissed the request for Lehrmann to pay the $200,000, allowing his appeal to proceed without financial security. Furthermore, Abraham ordered Network Ten and Wilkinson to pay Lehrmann’s legal costs incurred in opposing the security application.
In written submissions, Wilkinson’s barristers, Sue Chrysanthou, SC, and Barry Dean, argued that the judge’s findings should not have come as a surprise, as Wilkinson’s defence during the trial claimed that Lehrmann either knew Higgins did not consent or was “reckless” about whether Higgins consented.
“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,” the submissions said.
They argued that Lehrmann’s new legal counsel is taking a different approach to his lawyers during the trial, arguing that they “now apparently [takes] the view that it was unfair … not have asked him specific questions about consent, namely recklessness, presumably something like ‘you didn’t care if she was consenting one or way the other, did you’.”
“It is difficult to see what difference putting those propositions would have made or how Mr Lehrmann has been denied natural justice or procedural fairness by the fact that this line of questioning was not pursued,” the submissions said.
This is very much an evolving case that has been in the public eye for a number of years. In March 2019, Higgins and Lehrmann, while working for Senator Linda Reynolds, were involved in a security breach at Parliament House after a night of drinking. Shortly after, Higgins accused Lehrmann of raping her, though she initially dropped the complaint.
In 2021, after publicly sharing her story in an interview with The Project, Higgins reopened her case, leading to Lehrmann being charged with sexual assault. However, the trial faced significant delays, including a juror misconduct issue, and in December 2022, the case was dropped following medical concerns about Higgins’ ability to testify.
