Former federal Liberal staffer Bruce Lehrmann texted a friend that “I won’t be going to prison” after Brittany Higgins publicly accused an unnamed colleague of raping her in Parliament House, the Federal Court has heard.
Lehrmann’s text messages are being examined by the court after he filed defamation proceedings against Network Ten and News Corp last month 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 of Australia last week.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.
Federal Court Justice Michael Lee must decide whether he will allow Lehrmann to sue the media outlets because he did not file the claim within the one-year limit for bringing a defamation suit. The publications at the centre of his claim are two years old.
Lawyers for the media outlets and Wilkinson, who has briefed her own legal team, say Lehrmann should not be granted an extension of time.
The parties appeared in court on Thursday and the media outlets took Lee to text messages sent by Lehrmann on the night Ten broadcast Wilkinson’s interview with Higgins on The Project, following the publication of Maiden’s interview on news.com.au earlier that day.
In order to succeed in his application to extend the time limit, Lehrmann must show it was not reasonable to commence defamation proceedings within the one-year period.
The media outlets and Wilkinson argue that his text messages on the day the Higgins interviews were published and broadcast are relevant to the court’s consideration of that issue.
The court heard Lehrmann texted a friend late on February 15, 2021, after The Project interview had aired, and said: “I won’t be going to prison.”
He also told his friend that “we have two lined up for civil”, in an apparent reference to lawyers who could act in any defamation proceedings.
The court heard last week that Lehrmann had texted his then-girlfriend that night and said a criminal defence solicitor, Warwick Korn, had told him that “If I’m named tonight then he says I’m up for millions as defamation”.
He said Korn had also told him that criminal proceedings were “off the cards completely” and “I won’t see the light of a courtroom”.
But in his first public comments, Lehrmann gave evidence in court last week that Korn did not give this advice and he was trying to placate his girlfriend.
“She was incredibly stressed and traumatised,” Lehrmann said last week. “Rome was burning, and I was trying to put on a brave face.”
Sue Chrysanthou, SC, acting for Wilkinson, told the court last week that she had requested Korn, of Sydney-based firm Korn Tlais Defence Lawyers, give evidence about his advice to Lehrmann because “it’s said that Mr Korn disagrees with what is recorded” and “he doesn’t agree that he told Mr Lehrmann he was clear of any risk of being prosecuted”.
On Thursday, Lee asked Lehrmann’s barrister, Matthew Richardson, SC: “You’re not calling Mr Korn?”
“No, your honour,” Richardson replied.
Lehrmann’s legal team has argued it was not reasonable for Lehrmann to file defamation proceedings within the one-year limit because of legal advice he received, pending or existing criminal proceedings, and health concerns including mental health issues.
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.
Lee said on Thursday there was some force in the media parties’ submission that the mere fact of criminal proceedings was not an “automatic answer” to why it was not reasonable to file defamation proceedings within the one-year period.
Defamation proceedings can be filed pending criminal proceedings and the parties may ask for a stay to delay the matter being heard until after any criminal process.
But Lehrmann’s barrister, Richardson, submitted on Thursday that “it’s just not reasonable to commence proceedings purely for them to be stayed”.
He submitted that the evidence Lehrmann had given last week about the legal advice he had been given by Korn was “consistent with the actual events” even if it was inconsistent with text messages sent that night.
Lehrmann told the court that Korn had told him a defamation lawsuit “could happen” but they would need to await the resolution of any criminal proceedings or investigation.
Richardson said this was “orthodox and hardly surprising advice”.
He referred to a written submission made by one of the media parties that Lehrmann’s conflicting claims about Korn’s advice suggested he was a “habitual liar” and said that “our submission is this is unfair to a human being who found himself in this situation”.
The hearing continues.
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