Bruce Lehrmann claims Lisa Wilkinson, The Project did not name him to boost ratings

Bruce Lehrmann has sensationally claimed that Lisa Wilkinson and The Project did not name the former Liberal staffer because they were trying to drive up ratings, not because they were acting reasonably.

Lehrmann has appealed to the Full Court of the Federal Court following his multimillion dollar defamation suit loss to Ten and Wilkinson last year.

Justice Michael Lee found that Lehrmann – on the civil standard of the balance of probabilities – had raped his colleague Brittany Higgins inside Parliament House in 2019.

Lehrmann sued over Ms Wilkinson’s interview with Ms Higgins on The Project but Justice Lee made damning findings against him and he was subsequently ordered to pay $2m in Ten’s legal costs.

The former Liberal staffer has now appealed Justice Lee’s decision and is being represented by solicitor Zali Burrows at a three-day hearing.

Ten is being represented by Dr Matt Collins SC while barrister Sue Chrysanthou SC is appearing for Ms Wilkinson.

‘Whodunnit’

Bruce Lehrmann’s lawyer has argued that he was not named in The Project broadcast because they were trying to create a “whodunnit”.

Ms Wilkinson has argued that she acted reasonably when preparing the broadcast and has challenged Justice Lee’s finding that their qualified privilege defence had failed.

Ms Chrysanthou has pointed out that Lehrmann was not named by The Project - but accepts he was identifiable to a small number of people.

However, in her written submissions — which were published by the court on Thursday — Ms Burrows argues Ten and Wilkinson did not name him for “disingenuous” purposes.

“Mr Lehrmann does not agree with Ms Wilkinson’s assertion it was a factor to consider on assessing reasonableness, that in effect she should be commended for not naming Mr Lehrmann in the program is viewed is disingenuous, and viewed as a crafted strategy to maximise the ratings of a story, to achieve an exciting air of mystery akin to a ‘whodunnit’, a common phrase used to ask who committed a crime with the effect of provoking a greater public interest to ‘create chatter’ a ‘buzz’, placing the primary focus on the identity of the alleged perpetrator, arguably highlighting the sensationalism of a complex plot-driven story involving political scandal cover up of a rape in Parliament,” she wrote.

‘Cover up’

Ms Chrysanthou has told the court Justice Lee in his finding was “distracted” by the “so-called cover-up” allegation.

In his judgment, Justice Lee wrote that “the allegation of rape was the minor theme, and the allegation of cover-up was the major motif” of The Project broadcast.

Ms Chrysanthou told the court on Wednesday: “His Honour should have been more open to the reasonableness finding because that’s an acceptance of the fact because the program really wasn’t about Mr Lehrmann.”

She also disputed Justice Lee’s finding that the broadcast made allegations of “corrupt conduct”.

Ms Chrysanthou said the cover-up allegations would be relevant if Ms Wilkinson considered Higgins’ rape allegations “absurd and fanciful”.

“That just wasn’t the way His Honour addressed it,” Ms Chrysanthou said.

Justice Michael Wigney said: “It’s of some relevance is it not?

“Because His Honour’s reasoning was, given the way this story has been initially presented by (Higgins’ partner) Mr (David) Sharaz in particular - that is that it was a political bombshell so to speak - that should have caused her to be even more cautious about her underlying allegation.

“You can’t completely disassociate the two.”

Qualified privilege

Justice Lee did make adverse findings against Wilkinson and Ten after their qualified privilege defence failed.

Qualified privilege is a defence to defamation but relies on whether the publisher’s conduct was “reasonable”.

Wilkinson is appealing against that and Ms Chrysanthou is arguing that her client acted reasonably when preparing the Project broadcast.

“There was a huge amount of communication between the producers that Ms Wilkinson was excluded from,” Ms Chrysanthou told the court on Thursday.

Ten say Lehrmann was ‘totally unreliable’

Lehrmann has asked that Justice Lee’s findings be overturned on appeal, arguing that they differed from the case pleaded by Ten and Wilkinson, as well as the oral evidence at trial.

However in the written submissions which were, on Thursday, released by the court, Ten’s legal team of Dr Collins and Tim Senior argue: “None of these submissions is correct.”

They say it was not an “exceptional case” where Justice Lee could not have been able to make findings either way about whether Lehrmann and Higgins should be believed.

“Rather, the primary judge found Mr Lehrmann to be a totally unreliable witness, while being forcefully struck by the credibility of Ms Higgins’ oral evidence of the sexual assault,” Ten says in their submissions.

Lehrmann contends he was denied “procedural fairness” because some of Justice Lee’s findings were never put to him when he was on the witness stand.

It’s a proposition that Ten attacked, saying that from the outset of the case they had put forth an alternative case that Higgins was too drunk to give consent.

“He was extensively cross-examined as to his knowledge of Ms Higgins’ state of intoxication,” they said.

During the trial, Dr Collins asked: “Now, Mr Lehrmann, did you at any time seek Ms Higgins’ consent to have sexual intercourse with you?”

Lehrmann replied: “I didn’t have sexual intercourse with her.”

‘Denial of natural justice’

Ms Burrows told the court on Wednesday that Lehrmann was the victim of procedural unfairness because the findings of Justice Lee were different to the case put forward at trial.

“It’s a really, serious unfair denial of natural justice if Mr Lehrmann goes through a trial where it’s said ‘you are accused of A, B, D, E to Ms Higgins, this is the way it happened. And the judge finds ‘well I don’t find any of those A, B, C, D, E’,” Ms Burrows said.

However Justice Michael Wigney replied: “That’s not what happened. He did a find … it was A, B, C, D, E, F, G, H, I … A number of the matters alleged and particularised were found.”

Ms Burrows further argued that it was pleaded by Ten and Wilkinson as a “violent rape” but Justice Lee found it was a “non-violent rape”.

Justice Craig Colvin replied: “I’m not sure he found a non-violent rape and I’m not sure that’s a concept that I understand.”

Ms Burrows told the court that Lehrmann was “taken by surprise” that Justice Lee made findings that differed from Ms Higgins’ account and “he came up with a different version, a softer version.”

‘Australia’s most hated man’

In his judgment, Justice Lee found that Lehrmann could have only been awarded $20,000 had he won the trial.

However Ms Burrows said he should be awarded a substantial amount if he had the findings overturned on appeal.

She has pointed to media coverage of the trial, “social media insults he gets” and other “harassment”.

“He’s pretty much become the national joke,” Ms Burrows said.

“As I previously submitted to this court, he’s probably Australia’s most hated man.”

Ten attack’s Lehrmann’s ‘astonishing’ claim

Dr Collins on Wednesday attacked Lehrmann’s argument that he might have given different evidence had he known the findings that Justice Lee was going to make.

At trial, Lehrmann told the court that he had no sexual contact with Ms Higgins at Parliament House.

Ms Burrows told the court on Wednesday that he was the victim of procedural fairness and was surprised by Justice Lee’s findings.

But Dr Collins attacked that argument as “astonishing” given that he has persistently claimed that he did not have sex with Ms Higgins.

“Our learned friend said today at the bar table that well the unfairness resides in the fact they might have called further evidence, although she backed away from that when questioned about that evidence might have been,” Dr Collins said.

“There were only two people in the room.

“But she said Mr Lehrmann’s evidence might have been different.

“That’s, with respect, an astonishing submission.

“It could only be that had the pleading alleged a sexual assault in which consent was in question, he would have conceded having sexual intercourse with her and argued that he had her consent or thought he had her consent.”