‘Wicked’: Ten’s fight for Lehrmann payday

Network 10 has accused Bruce Lehrmann of acting in a “deliberately wicked and calculated” manner as it seeks to have the former political staffer pay all of its legal costs.

In a landmark judgment in the Federal Court last week, Justice Michael Lee dismissed Lehrmann’s defamation lawsuit against the broadcaster and journalist Lisa Wilkinson, finding on the balance of probabilities, Mr Lehrmann raped Brittany Higgins.

The matter will return to court next week for a hearing to decide whether Lehrmann will be liable for Ms Wilkinson and Network 10’s costs.

In submissions to the court, Mr Lehrmann says that Justice Lee could take a “nuanced” approach to awarding costs given that Network 10’s qualified privilege defence was not successful.

Network 10 and Ms Wilkinson have asked for Lehrmann to pay all of their legal costs, in submissions published by the Federal Court on Tuesday.

“Mr Lehrmann brought this proceeding on a deliberately wicked and calculated basis,” Network 10’s barrister Dr Matt Collins said in his submissions.

“He put Network Ten to the cost of defending this proceeding, which can be, with the benefit of hindsight, described as a clear abuse of process aimed at concealing the truth that Mr Lehrmann raped Ms Higgins.”

The submissions, tendered to the Federal Court, also reveal Mr Lehrmann had been given the opportunity to walk away from the case, but had declined “almost immediately”.

Dr Collins said in his submission that Ten and Ms Wilkinson had made a “walk away” offer of compromise, that would have seen the proceedings dismissed with no admission of liability, and no order as to costs.

The offer was made on August 31, 2023, and Mr Lehrmann was given 14 days to respond.

“Mr Lehrmann rejected the offer less than two hours after it was made,” Dr Collins said.

Dr Collins further wrote in his submissions that Lehrmann launched the proceedings, seeking substantial damages, “in circumstances where he knew the allegations he complained about were true”.

“Network Ten submits that Mr Lehrmann should be ordered to compensate it for the costs that it has incurred in successfully defending the proceeding,” Dr Collins wrote.

Dr Collins said that “Mr Lehrmann knew that he had raped Ms Higgins” and he would have known the proceedings would be dismissed because “he knew that proof of the rape would be sufficient to establish the substantial truth of the imputations”.

Ms Wilkinson’s barrister Sue Chrysanthou argued that Lehrmann should be ordered to pay for the costs of the proceeding given their truth defence was made out.

“The court has found that the applicant engaged in highly disreputable conduct connected with this proceeding,” Ms Chrysanthou wrote.

“The applicant has given false evidence and lied to this court on repeated occasions on issues material to the proceeding … This conduct, of itself, weighs against the applicant on the question of costs.”

Lehrmann’s lawyer David Helvadjian said that given Network 10’s qualified privilege defence failed, it was open to the court to make a “more nuanced cost order than is usual” and that Lehrmann only be liable for a portion of Ten and Wilkinson’s costs.

“In all the circumstances it may be an appropriate exercise of this court’s discretion to recognise the ‘success’ the respondents have enjoyed but, due to their failure with respect to the qualified privilege defences, temper that success by ordering that the applicant pay only a proportion of the respondents’ costs on the ordinary basis,” Mr Helvadjian said.

The matter will return to court next Wednesday.

Justice Lee dismissed the lawsuit last Monday after upholding Ten’s and Ms Wilkinson’s truth defence as he found - on the balance of probabilities - that Lehrmann raped Brittany Higgins inside Parliament House in March 2019.

“I’ve reached a state of actual persuasion on the balance of probabilities that Ms Higgins was not fully aware of her surroundings when sexual intercourse commenced and did not consent to intercourse when she became aware Mr Lehrmann was on top of her,” Justice Lee said.

Justice Lee said Lehrmann had sex with Ms Higgins “without caring whether she consented to this”.

“I am satisfied that it is more likely than not that Mr Lehrmann’s state of mind was so intent upon gratification (that he was) indifferent to Ms Higgins’s consent and hence went ahead with sexual intercourse without caring whether she consented to this,” Justice Lee said.

Justice Lee added: “In his pursuit of gratification, he did not care one way or the other whether Ms Higgins understood or agreed to what wasgoing on.

“Mr Lehrmann raped Ms Higgins. I hasten to stress this is a finding on the balance of probabilities.”

More to come.