Court told Bruce Lehrmann should have to pay all costs for his defamation disaster

Tim Clarke
The Nightly
4 Min Read
Bruce Lehrmann is facing a huge legal bill.
Bruce Lehrmann is facing a huge legal bill. Credit: Don Arnold/Getty Images

Bruce Lehrmann’ s lawyers say he is considering an appeal against the finding that he did rape Brittany Higgins, as a judge ruled he would have to pay a chunk of the millions in costs racked up in his disastrous defamation action.

The various legal teams who faced off in the extraordinary legal showdown over the interview with Ms Higgins aired by Network Ten in 2021 were back in court on Wednesday, to argue over costs.

Those are likely to be in the millions of dollars, given the number of weeks, barristers and witnesses that combined in the Federal Court trial last December.

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And having decided that, by civil standard, Mr Lehrmann did attack Ms Higgins in the office of Senator Linda Reynolds, Justice Michael Lee now has another big decision.

SYDNEY, AUSTRALIA - APRIL 15: Bruce Lehrmann emerges from court on April 15, 2024 in Sydney, Australia. Justice Michael Lee has ruled in favour of Network Ten and journalist Lisa Wilkinson in Bruce Lehrmann's defamation case. The case arose from allegations aired on 'The Project' news program, in which Brittany Higgins claimed she was raped by a colleague in Parliament House. Lehrmann, who denied any sexual contact with Ms Higgins, alleged defamation by the broadcast, despite not being explicitly named. The court found that Lehrmann had raped Brittany Higgins on the balance of probabilities.  (Photo by Don Arnold/Getty Images)
Bruce Lehrmann. Credit: Don Arnold/Getty Images

Who pays what to whom.

He reserved his final decision after a two-hour hearing.

But he did say to the Network Ten lawyers: “I have reached a level of satisfaction that there will be a costs order made in favour of your client”, with his full ruling would be “relatively prompt”.

Matt Collins, the lead barrister for Ten, said in a written submission to the Federal Court that indemnity costs should be awarded because Mr Lehrmann brought the case on a “deliberately wicked and calculated basis”.

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.

In court, Mr Collins backed up that costs claim.

But he was met with resistance from Justice Lee, who said that some of the conduct of Network Ten during the trial “cause me concern”.

Those concerns included comments made following the judgment by media lawyer Justin Quill, who in part said “the way in which judges and barristers pick apart and dissect what journalists did or didn’t do … is quite often divorced from reality”.

That and other comments seemingly upset Justice Lee.

“Network 10 apparently thought it appropriate for a period of 48 hours following the delivery of the judgment to go around and effectively say it had been vindicated in relation to all aspects of its conduct,” Justice Lee said.

“That was quite misleading.

“I made it perfectly plain that what occurred in this case was that the respondents fell well short of a standard of reasonableness.”

Brittany Higgins leaves the Federal Court of Australia in Sydney, Tuesday, November 28, 2023. (AAP Image/Dan Himbrechts) NO ARCHIVING
Brittany Higgins. Credit: DAN HIMBRECHTS/AAPIMAGE

Dr Collins revealed that affidavits had been sworn, with “very sincere expressions of contrition”.

But he said those comments should not affect the determination of costs.

“The question in respect of those costs is ... which party is entitled to be indemnified and to what extent for the costs which have been incurred?,” Dr Collins said.

Sue Chrysanthou – the barrister who separately represented former Ten presenter Lisa Wilkinson – argued Mr Lehrmann should be made to pay her costs aswell.

SYDNEY, AUSTRALIA - APRIL 15: Sue Chrysanthou SC hugs Lisa Wilkinson as they emerge from court on April 15, 2024 in Sydney, Australia. Justice Michael Lee has ruled in favour of Network Ten and journalist Lisa Wilkinson in Bruce Lehrmann's defamation case. The case arose from allegations aired on 'The Project' news program, in which Brittany Higgins claimed she was raped by a colleague in Parliament House. Lehrmann, who denied any sexual contact with Ms Higgins, alleged defamation by the broadcast, despite not being explicitly named. The court found that Lehrmann had raped Brittany Higgins on the balance of probabilities.  (Photo by Don Arnold/Getty Images)
Sue Chrysanthou SC hugs Lisa Wilkinson as they emerge from court on April 15, 2024. Credit: Don Arnold/Getty Images

“This proceeding was brought in personally against my client,” Ms Chrysanthou said.

“A very serious allegation was made … as to reckless indifference to the truth of the allegation of rape.”

It was also revealed in court that Taylor Auerbach — the former TV producer whose late injection into the case cased a delay in judgment — was also seeking costs.

Mr Auerbach was called as a late witness, giving evidence about nights out attended during the lead-up to an interview Mr Lehrmann gave to the Spotlight program.

He claimed those costs amounted to $17,500. Justice Lee said any order “aint’ going to be that”, adding that amount of money to answer a subpoena “was not on”.

In another twist, Mr Lehrmann’s lawyer David Helvadjian confirmed the disgraced former staffer was considering an appeal — and begged the court for more time for his new lawyer to look into it.

His deadline to lodge potential appeal papers before Wednesday was May 13.

But with hundreds of pages of judgement, thousands of pages of transcript and exhibits, it was stated that proposed media law barrister Guy Reynolds SC would need longer.

It was agreed that he have until May 31 to decided whether the appeal would be lodged.

Just ahead of the hearing, Ms Reynolds released a statement which appeared to firm up the possibility of another defamation trial – involving her claim against Ms Higgins and her fiancée David Sharaz.

GEN David Malcolm Justice Centre. Linda Reynolds arrives.
Linda Reynolds arrives. Credit: Iain Gillespie/The West Australian

“Since 2021 my staff and I have been subjected to unwarranted and hateful abuse as a result of allegations Ms Higgins made about my conduct, a primary allegation of political coverup Justice Lee recently found to be entirely false” Ms Reynolds said in a statement.

“Ms Higgins’ and Mr Sharaz’s concerted attack on me, supported by Labor in Federal Parliament, has taken an enormous toll on my physical and mental health, and that of my staff.

“Ms Higgins and Mr Sharaz continued to defame and disparage me on social media, raising other allegations which have led to these court actions.”

In WA’s Supreme Court on Tuesday, a bid to delay that listed trial in July was rejected by Justice Paul Tottle.

“I welcome Justice Tottle’s decision yesterday to keep the current trial dates. I look forward to the trial so that we can bring an end to this dispute and move on,” Ms Reynolds said.

During that hearing, Mr Sharaz said he was likely to abandon his defence to the defemation claim, because he could not afford to keep it going.

“As was made apparent by his own lawyers at the hearing yesterday, it is not clear what Mr Sharaz’s statement means in a practical sense,” Mr Reynolds said.

“However, the calculated release of the statement during the hearing, and the (in my view, misleading) references to confidential mediation discussions do not assist the resolution of the proceedings.”

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