Bruce Lehrmann’s defamation fight is potentially closer to going to trial after the trial judge expressed concern at the former political staffer being required to give evidence on multiple occasions in interlocutory proceedings.
Mr Lehrmann is suing Channel 10 and Lisa Wilkinson, as well as News Corp’s News Life Media and Samantha Maiden, over coverage of Brittany Higgins’ rape allegations in February 2021.
A key issue centres on whether Mr Lehrmann took too long to launch proceedings against the media.
The Federal Court was due to hear arguments on this preliminary matter next Thursday on whether to extend that deadline and allow Mr Lehrmann to take the respondents to trial, but that may not happen because a judge has said he wants to avoid Mr Lehrmann taking the stand before a trial.
Justice Michael Lee of the Federal Court said today he was concerned at the prospect of Mr Lehrmann being cross-examined on multiple occasions.
Justice Lee said it might be more appropriate for all preliminary issues to be determined in the one hearing at the time of trial.
Mr Lehrmann’s lawyer, Stephen Whybrow SC, told an interlocutory hearing today that his client would be available to give evidence on the limitation issue next Thursday.
Justice Lee said he did not want Mr Lehrmann to have to be cross-examined multiple times, potentially next Thursday and again at the trial.
“If I form the view it was necessary to … call the applicant (Mr Lehrmann) personally, then I would be inclined to hear submissions about whether I should hear this in a trial,” Justice Lee said.
“I am reluctant for them to be cross-examined three times”.
Typically a plaintiff in a defamation matter in Australia must bring their claim to court within 12 months of the publication. It is possible to launch proceedings outside of that limitation period but only with the permission of the court.
In court today, Mr Whybrow shone some light on what Mr Lehrmann would be arguing as to why he took so long to complain.
He told the court his client’s delay was due in part to legal advice he had received at the time.
Mr Whybrow said the delay was also due to an overlap of criminal proceedings in relation to the allegation and “to a lesser extent” it was due to Mr Lehrmann dealing with “health issues and mental health issues and stress as a result of the allegedly defamatory statements”.
“It’s unusual … as matters were published alleging criminal conduct before charges had been laid,” Mr Whybrow told the court.
“I am concerned about Lehrmann being required to be cross examined on multiple occasions about matters which are going to cause stress and anxiety”.
If the case goes straight to trial, the respondents will not only argue that Mr Lehrmann took too long to sue them, but will also rely on defences of truth and qualified privilege.
In his statement of claim to Channel 10 Ms Wilkinson, News Life Media and Ms Maiden, Mr Lehrmann’s lawyers alleged the respondents were “recklessly indifferent to the truth or falsity” when they alleged a man raped Ms Higgins in Parliament House on March 23, 2019.
Mr Lehrmann strenuously denies the allegation, which has never been proven in court.
His team from Mark O’Brian Legal claimed “the applicant was identifiable” by politicians, political assistants, staffers, journalists, family, friends and acquaintances, despite the fact Mr Lehrmann was not named in the reports.
Channel 10’s team is headed by Melbourne barrister Matt Collins KC.
Ms Wilkinson broke away from Channel 10 to hire her own legal team led by Sydney defamation lawyer Sue Chrysanthou SC.
The joint defence of News Life Media and Ms Maiden is represented by Melbourne barrister Renee Enbom KC.
Mr Lehrmann was charged with sexual intercourse without consent in August 2021 and pleaded not guilty to the charge that was later dropped.
This came six months after allegations were first made public accusing an unnamed staffer of sexually assaulting Ms Higgins in Parliament House in March 2019.
The first trial collapsed following juror misconduct and the DPP ultimately did not proceed, with a second citing Ms Higgins’ mental health.
Mr Lehrmann has always denied having sex with Ms Higgins and any wrongdoing during the trial.
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