Lehrmann given green light to sue Ten, News Corp over Higgins interview

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Former federal Liberal staffer Bruce Lehrmann has been given the green light to sue Network Ten and News Corp for defamation over interviews airing Brittany Higgins’ rape allegation, after a judge extended an expired limitation period.

Lehrmann filed Federal Court defamation proceedings against Ten and News Corp in February over interviews with his former colleague Higgins on The Project and news.com.au, broadcast and published on February 15, 2021.

Bruce Lehrmann enters the Federal Court in Sydney last month.Credit: Kate Geraghty

Lehrmann alleges the interviews, which did not name him, conveyed a series of defamatory meanings, including that he raped Higgins in then defence industry minister Linda Reynolds’ office in 2019. He denies the rape allegation.

Lehrmann asked Federal Court Justice Michael Lee to extend a one-year limitation period to enable him to sue for defamation over the interviews, which are now two years old.

The media outlets had argued he should not be granted an extension of time.

In a decision on Friday, Justice Michael Lee extended the limitation period.

Lee said his decision did not involve a consideration of the merits of either case.

Lehrmann needed to persuade the court that it was not reasonable for him in the circumstances to commence the proceedings within the limitation period, Lee said in a summary read in court.

It was a “tight limitation”, Lee said, but it was “an entire year”, and it gave a prospective plaintiff time to reflect on a variety of factors including whether the damage allegedly caused by a publication was ultimately “as bad as … [first] imagined” and whether they should “let sleeping dogs lie”.

A prospective plaintiff was entitled to spend some time considering whether to make the life-changing decision to sue for defamation, he said.

Lee found Lehrmann’s lawyers had established it was not reasonable for him to file the case within a year of the interviews.

Lehrmann’s legal team had argued it was not reasonable because of legal advice he received, pending or existing criminal proceedings, and health concerns including mental health issues.

But the media outlets pointed to text messages Lehrmann sent to his girlfriend and others immediately after the Higgins interview was aired on Ten, which suggested he had received legal advice a criminal trial was “off the cards completely” but he could file defamation proceedings.

Lehrmann gave evidence last month in court that he fabricated that advice to placate his girlfriend, and his lawyer had in fact told him that any defamation case would need to await the conclusion of the criminal process.

His lawyer, criminal defence solicitor Warwick Korn, did not appear in court to give evidence about the advice he gave, and Lee said an inference could be drawn that Korn’s evidence would not have assisted Lehrmann.

Lee noted that a key issue in dispute in the proceedings was the content of the advice given to Lehrmann at this time, and said text messages Lehrmann sent to his then-girlfriend and a friend were an unreliable basis on which to conclude he was advised he would never face a criminal charge.

Lehrmann was “flailing around” and saying what he thought he needed to say to put the best possible spin on the situation, Lee said, and he was satisfied Lehrmann was being untruthful when he texted that he had received advice that criminal proceedings were “off the table”.

Lehrmann was 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.

Lee said it would have been open to Lehrmann to file the defamation proceedings and seek a stay, delaying the matter proceeding pending the outcome of the criminal process, but he would have been taking “a step into the unknown”.

Lehrmann is also suing the ABC for defamation for broadcasting a National Press Club address last year by Grace Tame and Brittany Higgins, in a case expected to test the defences available for live broadcasts. That case was filed this month and did not require court leave to continue because it was filed just within the one-year limitation period.

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