Bruce Lehrmann has been granted an extension of time to consider an appeal at a federal court hearing which saw Network Ten’s conduct outside the court, after the judgment, described by Justice Michael Lee as “discourteous” and “misleading”.
Lee said Ten’s decision to offer comment outside his court minutes after the judgment was handed down had caused him concern, in particular the claim the network had been vindicated.
Lawyer Justin Quill, who was authorised to speak by Ten, told journalists on 15 April that Ten had been vindicated by the judgment, saying: “The way in which judges and barristers pick apart and dissect what journalists did or didn’t do in applying a legal threshold or legal test of reasonableness is quite often divorced from reality.”
Lee said Quill’s assertions were made “immediately after the judgment, and without even reading the judgment”. He refuted Quill’s claim that his findings were “divorced from reality”.
“Notwithstanding that Network Ten 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,” Lee said.
“That was quite misleading. I made it perfectly plain that what occurred in this case was that the respondents [Ten and Lisa Wilkinson] fell well short of a standard of reasonableness in the credulous way they went about reporting these allegations, and I was quite clear about that.”
In his judgment, he had been critical of the conduct of The Project’s team, saying “the rape allegations were intertwined with the cover-up and the Project team had strong indications of the unreliability of their main source, particularly as to how she lost material on her phone and selected material survived”. He was also critical of Ten for approving Wilkinson’s Logies speech.
In an affidavit released by the court on Wednesday, Quill apologised for his “off the cuff” remarks to reporters, saying he did not intend “to suggest that his Honour was wrong in his view of the law of contempt of court or its application in this case, or that that law of contempt does not bind and must be complied with by media organisations”.
“I absolutely did not intend to convey any lack of respect for this Court or the law. I did not intend to convey any suggestion about the Australian media’s obligation to comply with the law. I accept without hesitation the media should comply with the law.”
Ten’s silk Dr Matt Collins KC, who is asking the court to make an order that Lehrmann pay all Ten’s costs, said the conduct of Quill was not relevant when considering the costs matter.
Ten’s lawyers were contrite and had each filed affidavits explaining their conduct, Collins said.
“These are three very, very serious lawyers who have put on very contrite expressions of very sincere expressions of contrition,” Collins said.
“Mr Quill’s statements outside the court were made in the immediate aftermath of a review on his judgment, having been read those statements and respectful submission, could not have a rational bearing upon the proper disposition of costs.”
Collins revealed he had been recruited by Ten to advise staff on their legal responsibilities following Lee’s criticism of the network for approving Wilkinson’s Logies speech – which resulted in the delay of the criminal trial – and for standing by that legal advice in evidence.
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“You have a corporation who’s going to report on court matters in the future thinking it’s okay, eight days before a jury trial, to publish such material,” Lee said.
The court also heard for the first time it was possible Lehrmann, who has not worked since 2021, would be bankrupt and unable to meet a costs order.
“Alternatively, someone has to go and bankrupt Mr Lehrmann or do something like that,” Collins said.
The former Liberal staffer lost the defamation case he brought against Ten and Wilkinson, with Lee finding that on the balance of probabilities Lehrmann raped Brittany Higgins on a minister’s couch in Parliament House in 2019. Lehrmann has always denied the allegation and pleaded not guilty at the criminal trial of the matter which was aborted due to juror misconduct.
Lehrmann had until 13 May to file an appeal but has been granted an extension to 31 May.
Lee reserved his decision on costs to a date yet to be determined.
Former Spotlight producer Taylor Auerbach, a late witness in the trial, has asked for his costs in the order of $60,00 to be paid by Lehrmann and Ten.
Lee indicated to Auerbach’s legal counsel that he would consider their submission but would be unlikely to make an order for costs of that magnitude.