Veteran journalist Lisa Wilkinson will seek to prove former federal Liberal staffer Bruce Lehrmann raped his then-colleague Brittany Higgins in Parliament House as part of a truth defence to his defamation claim against her and Network Ten.
Lehrmann filed Federal Court defamation proceedings against Ten and Wilkinson last month over Wilkinson’s interview with Higgins on The Project, broadcast on February 15, 2021, and related publications on the 10Play website and YouTube.
Lisa Wilkinson has responded to Bruce Lehrmann’s lawsuit.Credit:Getty Images, Alex Ellinghausen
Lehrmann alleges the publications convey four defamatory meanings, including that he “raped Brittany Higgins in [then-]Defence Minister Linda Reynolds’ office in 2019”.
He has filed a separate defamation claim against News Life Media, the News Corp company behind news.com.au, over two articles by political editor Samantha Maiden, also published on February 15, 2021.
Lehrmann’s lawyers have asked the court to extend a one-year limitation period for bringing a defamation claim because the interviews at the centre of the lawsuits, marking Higgins’ first comments in public, were published two years ago.
Wilkinson’s lawyers filed her written defence to the lawsuit in the Federal Court in Sydney on Wednesday and argue the limitation period should not be extended.
Wilkinson has opted to brief her own legal team, headed by Sydney defamation barrister Sue Chrysanthou, SC, while Ten will file a separate defence in the coming days. It raises the prospect the Federal Court may make different findings against each of Wilkinson and Ten about their legal responsibility for the broadcasts. Wilkinson left The Project last year but remains a Ten employee.
If the court extends the limitation period and allows Lehrmann’s case to proceed, Wilkinson will seek to rely on a series of defences to Lehrmann’s claim, including truth and qualified privilege.
In her written defence, Wilkinson does not dispute that the central defamatory claim of rape was conveyed, with a caveat that she does not admit that Lehrmann was identified by the broadcasts.
Lehrmann was not named by Ten or News Corp, but Lehrmann’s lawyers argue his identity would have been known to his political associates, friends and family, and the publications invited readers and viewers “to speculate” and search for third-party commentary online.
Brittany Higgins with Lisa Wilkinson as she takes the stage at the Women’s March 4 Justice at Parliament House in March 2021.Credit:Alex Ellinghausen
Wilkinson’s lawyers say she “does not know and cannot admit that the applicant [Lehrmann] was reasonably identified by any viewer of the first matter on 15 February 2021”.
They add that they have “sought particulars of identification from Lehrmann … and those particulars have not been sufficiently supplied”. However, Wilkinson “admits that if Lehrmann was so reasonably identified by any viewer on 15 February 2021, the first matter carried an imputation that Lehrmann raped Brittany Higgins” in Parliament House in 2019.
If the case proceeds to trial and all defences are considered, Federal Court Justice Michael Lee, who is presiding over the case, will need to decide whether Wilkinson’s legal team has proven the rape took place on the balance of probabilities, that is, it is more likely than not that it did.
In a criminal trial where the liberty of an accused hangs in the balance, the prosecution is held to a much higher standard and must prove guilt beyond reasonable doubt.
Lehrmann was named in the media on August 7, 2021, after he was charged with one charge of sexual intercourse without consent.
He pleaded not guilty to the charge. His trial was aborted in October last year due to juror misconduct and the charge was later dropped altogether amid concerns about Higgins’ mental health. Lehrmann has always maintained his innocence.
Lawyers for Wilkinson say in her written defence that “Lehrmann was given multiple opportunities to respond before the first matter was broadcast”, including two emails.
“Each such approach … was timely, fair and reasonable, but despite that, Lehrmann elected not to respond at all,” the defence says.
An allegation of recklessness made by Lehrmann against Wilkinson in his statement of claim “is baseless, unjustified, unsupported by any fact and should be withdrawn”, her lawyers say.
Naming journalists as respondents to a defamation case does not mean they will be liable personally for any damages award. Ten and News Corp would cover any such order.
Wilkinson’s lawyers also seek to rely on the defence of qualified privilege, which relates to publications of public interest where a publisher has acted reasonably.
They say “Wilkinson is an experienced, accomplished and careful journalist of more than 40 years’ experience” who has “interviewed 10 Australian prime ministers and various other world leaders, reported from disaster zones, and reported on live breaking news on a daily basis”.
The lawyers set out Wilkinson’s sources and add that “to Wilkinson’s knowledge, extensive fact checking of the allegations made by Higgins was undertaken for some weeks” by Network Ten including senior lawyers, senior news and current affairs executive Peter Meakin, and The Project’s head of longform feature stories.
“Wilkinson understood that there was a consensus amongst those persons and Wilkinson that Higgins was a credible witness,” the defence says.
The defence adds that “Wilkinson at all relevant times understood that Network 10 employed an expert legal team with experience in pre-publication advice, including defamation and contempt”.
Lehrmann’s lawyers refer in his statement of claim to Higgins’ evidence in the ACT Supreme Court last year suggesting Wilkinson and Maiden were “fighting so that, come Walkleys time, who could claim what,” in an apparent reference to the timing of the release of the stories in 2021.
They allege the hurt and harm to Lehrmann was aggravated by the fact that the journalists were, in their words, seeking to “exploit” the allegations for “professional gain”.
But Wilkinson’s lawyers say in her defence that “Wilkinson had no contact with Samantha Maiden … about Higgins, her allegations, exclusivity or otherwise prior to the broadcast of the first matter or at any other relevant time thereafter”.
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