Former federal Liberal staffer Bruce Lehrmann texted his then-girlfriend on the day Network Ten and News Corp aired rape allegations made by his former colleague Brittany Higgins and told her he had legal advice that a criminal trial was “off the cards”, the Federal Court has heard.
Lehrmann filed Federal Court defamation proceedings against Ten and News Corp last month over interviews with Higgins on The Project and news.com.au, published on February 15, 2021.
Bruce Lehrmann outside the Federal Court in Sydney on Thursday.Credit:Kate Geraghty
He names Lisa Wilkinson, a Ten employee who left The Project last year, and news.com.au political editor Samantha Maiden as respondents to the lawsuits against their respective employers.
Lehrmann alleges the publications, which did not name him, conveyed a series of defamatory meanings, including that he “raped Brittany Higgins in [then-]Defence [Industry] Minister Linda Reynolds’ office in 2019”. He denies the rape allegation.
A preliminary issue in the case is whether the court will allow Lehrmann to sue the media outlets because he did not file the claim within a one-year limitation period for bringing a defamation suit. The publications at the centre of his claim are two years old.
The media outlets say Lehrmann should not be granted an extension of time and the issue was agitated at a hearing on Thursday. He attended the hearing in Sydney.
Sue Chrysanthou, SC, acting for Wilkinson, read a message sent by Lehrmann to his then-girlfriend on February 15, 2021, at 5.06pm, before The Project broadcast Wilkinson’s interview with Higgins.
“If I’m named tonight then he says I’m up for millions as defamation,” Lehrmann texted, referring to legal advice he said he had received.
The messages continued that day, the court heard, with Lehrmann telling his girlfriend: “Warwick [Korn, his solicitor] doesn’t think I will be named.
“If I am, then … Channel 10 as well as the government department of finance are up for a lot of money,” he texted.
“Criminal, he says, is off the cards completely,” another text read. “One, it’s false, and second, they have nothing.” He went on to say that there may be civil proceedings.
The court heard Lehrmann also texted: “He said tonight I won’t see the light of a courtroom.” The identity of the person referred to in that message was unclear.
The court heard the message referring to criminal proceedings being “off the cards” was an apparent reference to advice Lehrmann said had been given by Korn, of Sydney-based firm Korn Tlais Defence Lawyers.
But Chrysanthou said there was a dispute about whether Korn had in fact given advice in those terms. She had requested that Korn appear to give evidence.
“It’s said that Mr Korn disagrees with what is recorded, effectively, in those text messages as to the advice that was given,” Chrysanthou said.
“Your honour’s been taken to text messages which seek to summarise both criminal law advice and defamation advice … the criminal advice being, ‘I’ll never be charged,’ or words to that effect … and the defamation advice being, ‘you’ve been defamed, and you’re up for a lot of money’, or words to that effect.
“Mr Korn’s told Mr [Paul] Svilans [Lehrmann’s defamation solicitor] on 14 March that he didn’t give advice to that effect and in particular … he doesn’t agree that he told Mr Lehrmann he was clear of any risk of being prosecuted,” Chrysanthou said.
Lehrmann’s barrister, Steven Whybrow, SC, has previously told the court his client would argue it was not reasonable for him to file proceedings within the one-year period because of legal advice he received, pending or existing criminal proceedings, and health concerns including mental health issues.
Chrysanthou said Lehrmann bore the onus for establishing it was not reasonable for him to commence defamation proceedings within the entire period.
Federal Court Justice Michael Lee said it appeared there was a bona fide dispute about the advice Lehrmann received.
Neither News Corp nor Ten named Lehrmann but he was subsequently named in the media in August 2021 after he was charged with sexual intercourse without consent.
He pleaded not guilty to the charge. His trial was aborted in October last year due to juror misconduct. The charge was later dropped altogether amid concerns about Higgins’ mental health. Lehrmann has always maintained his innocence.
The hearing continues.
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