‘Mr Lehrmann made the mistake of going back for his hat’ – What potential defamation plaintiffs may learn from the judgment against Bruce Lehrmann

On 15 April 2024, Justice Michael Lee handed down his judgment in favour of the respondents, Network Ten and Lisa Wilkinson, in the high profile defamation case of Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 (Lehrmann case). The parties are now required to file submissions in relation to costs, at the conclusion of which Mr Lehrmann may be liable to pay a significant sum of the respondents’ legal costs. However, this potential liability is not the only consequence Mr Lehrmann faces.

Within hours of the judgment being handed down, countless articles have quoted paragraph 620 of Justice Lee’s judgment, ‘Mr Lehrmann raped Ms Higgins.’

Whilst Mr Lehrmann may have escaped the criminal case against him, in commencing defamation proceedings against Network Ten and Ms Wilkinson, Mr Lehrmann set himself up for this potential public downfall. It is through this downfall that the Lehrmann case acts as a warning to all individuals considering commencing defamation proceedings.

Background to the Lehrmann case

On 15 February 2021, Network Ten broadcasted The Project and republished the episode on its 10 Play website and The Project’s YouTube channel (The Project Episode). The Project Episode contained imputations that Mr Lehrmann had raped Ms Higgins, including imputations regarding the manner in which he raped her (Imputations).

On 17 August 2021, Mr Lehrmann was charged under the Crimes Act 1900 (ACT) with one count of engaging in sexual intercourse with Ms Higgins without her consent. On 2 December 2022, the Director of Public Prosecutions announced that he did not intend to proceed with the prosecution of Mr Lehrmann due to the ill-health of Ms Higgins.

On 7 February 2023, Mr Lehrmann commenced proceedings against Network Ten and Ms Wilkinson for defamation due to the Imputations made on The Project Episode.

The Lehrmann case

To determine whether Mr Lehrmann had been defamed in The Project Episode, a judge was always required to first determine whether Mr Lehrmann had raped Ms Higgins. Without such a determination, it could not be concluded whether Network Ten and Ms Wilkinson had a defence to the claim, being that they published information that was true.

Through commencing defamation proceedings, Mr Lehrmann not only effectively opened up an investigation into his conduct with Ms Higgins, but did so at a lower burden of proof than that of the criminal proceeding against him. As explained by Justice Lee in his judgment, in the civil jurisdiction, the allegation that Mr Lehrmann raped Ms Higgins was only required to be satisfied on the balance of probabilities and not beyond reasonable doubt.

This resulted in a judgment filled with reprehensible findings against Mr Lehrmann, including comments by Justice Lee such as ‘I consider it more likely than not that in those early hours… having successfully brought Ms Higgins back to a secluded place, Mr Lehrmann was hell-bent on having sex with a woman’ and ‘In his pursuit of gratification, he did not care one way or another whether Ms Higgins understood or agreed to what was going on’.

Although no one can state that Mr Lehrmann has been found criminally guilty of raping Ms Higgins, and Mr Lehrmann does not face imprisonment or the imposition of a criminal record, Justice Lee’s findings have had a significant impact on Mr Lehrmann’s public reputation. A judgment finding that Mr Lehrmann raped Ms Higgins, after significant consideration of the factual circumstances, has far more weight than articles or news reports alleging the rape occurred.

In seeking redemption, Mr Lehrmann has only tarnished his reputation further, as Justice Lee stated, ‘Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat.’

Considerations for future defamation plaintiffs/applicants

The Lehrmann case is yet another example of the risks individuals face when commencing defamation proceedings. Only last year on 1 June 2023, we saw a similar outcome befall Ben Roberts-Smith in the case of Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555, where Justice Besanko found there was ‘substantial truth’ to serious imputations made about Mr Roberts-Smith in newspaper publications.

As many media reports have acknowledged, Network Ten and Ms Wilkinson did not come out of the Lehrmann case unscathed, with both receiving critical remarks from Justice Lee, but as the respondents, they were required to participate in the proceedings. Comparatively, as the applicant, Mr Lehrmann had the choice to not commence proceedings or to withdraw the proceedings at any time, noting that the latter may have had costs implications.

The decision to commence defamation proceedings is not one to be taken lightly. Whilst it may be tempting to take immediate action to defend your reputation, defamation cases shine a public light on the actions of all parties involved and may only cause further and more significant damage if findings are made against you.

For more information on defamation, take a look at our ongoing series of articles on defamation. If you think you have been defamed, may be defaming others, or have any questions regarding defamation law, please contact Mark Schneider or Georgina Buckley of our litigation and dispute resolution team.