Bruce Lehrmann vs Lisa Wilkinson defamation case: Network Ten says all its costs should be paid

Bruce Lehrmann — the man who a judge found on the balance of probabilities raped Brittany Higgins — engaged in a “wicked and calculated” legal plan to cover up his conduct, according to Network Ten.

Last week, following one of the most followed and furious defamation trials in Australian legal history, Justice Michael Lee threw out a claim by Lehrmann that his reputation had been ruined — by finding that by the civil standard he was a rapist.

And now, the TV network that successfully defended that claim has told a judge that defence should be paid for in full by the former Liberal Party staffer — in part because “at the time of commencing the proceeding, Mr Lehrmann knew that he had raped Ms Higgins.”

A costs hearing is due to take place before Justice Lee next week.

The stakes are inevitably in the multimillions of dollars.

And Dr Matt Collins, the lead barrister for Ten, said in a written submission to the Federal Court that indemnity costs should be awarded.

“Mr Lehrmann brought this proceeding on a deliberately wicked and calculated basis. Mr Lehrmann brought this proceeding, gambling on the respondents not being able to discharge their burden of proof,” he said.

“He engaged in a prolonged and conscious effort to mislead the Court, and deliberately concocted evidence in that endeavour.

“(He) ran a case based on positive falsities, and put Network Ten to the cost of defending a baseless proceeding.

“The seriousness of such conduct cannot be overstated.”

Network Ten also pointed out they had made an offer to Mr Lehrmann to settle the claim month before the trial was due to start.

But Lehrmann told his lawyers to turn it down just two hours later.

“Mr Lehrmann brought this proceeding, gambling on the respondents not being able to discharge their burden of proof,” the submission said.

“Mr Lehrmann knew that he had raped Ms Higgins, and therefore had knowledge that the imputations upon which the entirety of his claim rested were substantially true.

“It must have been apparent to Mr Lehrmann, as at the date of the Offer, that the chickens were coming home to roost.”

In a separate submission, lawyers for former presenter Lisa Wilkinson also said Lehrmann should pay for their separate defence team

In his response, Mr Lehrmann’s lawyers admitted that legal precedent — including that in the case of Ben Roberts-Smith — meant the court could find that he was liable for all the costs.

But they argued he should not be ordered to pay them all.

“It must be borne in mind that a cost order is not to be used to punish a party,” Lehrmann’s lawyers wrote.

“Further, it has been held that ‘even a finding that a party has fabricated evidence is not necessarily sufficient to warrant the grant of an indemnity costs order’.”

They argued that the Lehrmann team should not have to pay for the portion of time it took to argue Network Ten’s qualified privilege defence — that Ten acted reasonably in publishing their original interview with Ms Higgins which sparked the defamation claim.

“None of the qualified privilege defences were successful,” they said.

“Given this Court’s findings as to the failure of those defences and the fundamental missteps taken by the respondents in publishing The Project broadcast … it is open to this Court to conclude that the applicant should be compensated for the time and expense in having to establish that the qualified privilege defences were bound to fail.”

The costs hearing is set down for May 1.