Federal Court Judge Michael Lee must focus on four key issues in Bruce Lehrmann's defamation case against Network Ten and Lisa Wilkinson.
1. Lehrmann was identified by the project?
To succeed in the case, Lehrmann must establish that he was identified when Higgins appeared on Ten's. the project on February 15, 2021 and accused an unnamed colleague of raping her in 2019 in the office of then Defense Industry Minister Linda Reynolds, for whom they worked as advisers.
Bruce Lehrmann before the Federal Court in Sydney in November.Credit: Kate Geraghty
Lehrmann's lawyers argue that the description of the alleged perpetrator allowed “a large and undetermined number of people” in Canberra and elsewhere to identify him, even by referring to other sources. Ten and Wilkinson dispute it.
University of Sydney professor David Rolph, an expert on defamation law, said it would be enough for a claimant or applicant to show that “a person other than themselves saw the broadcast and understand that he meant her” to establish liability.
“However, the number of people who identified the applicant from the broadcast is relevant to the assessment of damages,” he said. A much smaller audience would justify a smaller damages award.
Lehrmann called a family friend and two former Liberal staffers to testify on the matter.
If Lehrmann cannot establish that he was identified, his claim fails at the first hurdle.
2. Has the truth defense been established?
If Lee discovers that Lehrmann was identified, Ten and Wilkinson's main defense in the case is the truth.
Under the truth defense, Ten and Wilkinson are trying to prove by the civil standard, on the balance of probabilities, meaning more likely than not, that Lehrmann raped Higgins.
Brittany Higgins outside the Federal Court in November last year.Credit: Kate Geraghty
Although this is less onerous than the criminal standard of proof beyond a reasonable doubt, the so-called Briginshaw principle applies in civil cases involving serious allegations and requires courts to proceed cautiously in draw serious conclusions.
If the truth defense is established, Lehrmann loses the case.
3. Has the defense of qualified privilege been established?
Should the truth defense fail, Ten and Wilkinson seek to rely on a defense of qualified privilege, which protects publications in the public interest where a media outlet has acted reasonably. In this way, the actions of the station and its star presenter are well focused.
Lisa Wilkinson before the Federal Court in Sydney in April.Credit: Janie Barrett / SMH
Ten and Wilkinson have separate legal representation, and Lee may make separate findings against the network and its former star host. Wilkinson continues to work for Ten, but has not appeared on air since 2022.
If the qualified privilege defense succeeds, Lehrmann loses the case.
4. If the defenses fail, what is the corresponding compensation?
If both media's defenses are rejected, Lehrmann wins the case and Lee must consider the appropriate amount of damages.
Damages for noneconomic loss in defamation cases are capped at $459,000, a figure that increases annually. Lehrmann has also asked for aggravated damages, which can be awarded in addition to that figure.
Lawyers for Ten and Wilkinson have argued that this may be a case that warrants zero or nominal damages if their defenses fail, but the judge also found that Lehrmann lied in his evidence and did not give a credible account of the which happened in the House of Parliament on March 23. , 2019.
Legal experts differ on whether zero, as opposed to nominal, damages can be awarded to a successful defamation plaintiff.
