Legal issues in the Lehrmann defamation case

This follows a lengthy criminal trial brought against Lehrmann in the ACT Supreme Court that was discharged in October 2022 due to juror misconduct and later abandoned amid concerns about Higgins’s mental health. Lehrmann has always maintained his innocence.

The suit is against both media companies and their respective journalists, Wilkinson and Maiden, for their coverage of Higgins’ allegations.

Lehrmann alleges the publications defamed him by imputing he raped Higgins in the office of former Defence Minister Linda Reynolds in Parliament House in 2019.

Wilkinson has hired a legal team, separate of Network Ten, led by Sydney defamation barrister Sue Chrysanthou SC. Network Ten is represented by Melbourne barrister Matt Collins KC while News Corp and Maiden are represented by Melbourne barrister Renee Enbom KC.

The first issue is whether the court will extend the one-year limitation period that applies in defamation cases as the relevant publication date is over two years old. Professor David Rolph, a media law expert with the University of Sydney Law School, described it as the first hurdle.

“Limitation period arguments will usually be dealt with first, because if the claim is statute-barred, then there is no point in dealing with the underlying cause of action,” Rolph told The Guardian.

“The limitation period that applies for this particular claim requires the plaintiff to prove that it was not unreasonable for them not to have commenced within the one-year limitation period.

“So it’s a high burden for the plaintiff to get over in the first instance.”

Lehrmann’s lawyers, led by barrister Steven Whybrow SC, have argued that he was delayed in launching defamation proceedings due to his mental health, overlapping criminal proceedings and prior legal advice.

Wilkinson’s barrister Chrysanthou said there was a notable gap “of many months” between the publications in question and the criminal charge.

“Mr Lehrmann apparently seeks to rely on his medical condition from time to time and other matters, and from a factual perspective, we wish to challenge those,” Chrysanthou told the court.

“I’m not sure if your honour has had a chance to review the evidence relied upon in support of the application, but it does seem to us to be quite… light on detail in respect of times, dates and in particular legal advice said to be given.”

Network Ten’s barrister Collins also said they would oppose Lehrmann’s grounds for delay, including any delay due to criminal proceedings.

“This is not the simple baseline case where a defendant maintains their right at all times to silence and does not enter into any examination of the merits in any forum, that’s not this case in our submission,” said Collins.

The second issue is whether the relevant publications identified Lehrmann.

Neither Network Ten nor News Corp mentioned him by name in their February 2021 broadcasts. Lehrmann argues that he is still identifiable as it encouraged viewers to speculate and seek out his identity.

Moreover, his former colleagues, friends and family would have been able to identify him. His name was revealed in the media later in 2021.

All four respondents have filed their defences with the Federal Court and argue that the court should not extend the time limitation. Should the matter proceed to trial, they seek to rely on the defences of substantial truth and qualified privilege.

Because defamation is a tort and thus a civil matter, the standard of proof differs from criminal proceedings. The respondents in this case will have to prove on the balance of probabilities that the imputation that Lehrmann raped Higgins is substantially true.

Michael Douglas, law lecturer at the University of Western Australia, noted in The Guardian that this is much easier to prove than the criminal standard of proof – beyond reasonable doubt.

“It will be easier… to do this than it would have been for a prosecutor to prove the truth of a rape allegation in a criminal trial,” said Douglas.

Professor Rolph explained to The Sydney Morning Herald that the seriousness of the allegations must also be considered.

“In our system of law, the defendant bears the onus of proof,” said Rolph.

“The defendant will have to prove that the allegations are substantially true on the balance of probabilities, but taking into account the seriousness of the allegations.

“The defendant will have to prove truth by reference to admissible evidence.”

Associate Professor Jason Bosland, Director of the Media and Communications Law Research Network at the University of Melbourne, told The Sydney Morning Herald that the truth defence “required that the substance of the allegation be established”.

“The strength of the evidence that you require to establish a particular fact on the balance of probabilities will depend on the nature of the allegation,” said Bosland.

“That standard will be more difficult to satisfy where the allegation is serious. For example, an allegation of criminal conduct.”

Higgins said that she is willing to provide evidence in any defamation proceedings however it is yet to be determined whether she will be called.

The other relevant defence is statutory qualified privilege. This provides a defence for publications that were in the public interest and where journalists and publishers have acted reasonably.

“Qualified privilege can be a tricky defence to get up on – that is why the media argued hard to get a new public interest defence in the most recent iteration of defamation law reform,” said Douglas.

Due to the date of publication, the new public interest defence is not available in this case.