Inside Ten’s eleventh-hour manoeuvre in the Lehrmann defamation case


Auerbach sent a concerns notice, the first step in initiating defamation proceedings, to Lehrmann on Wednesday. A concerns notice allows a party accused of making a defamatory comment to take remedial action before proceedings are filed.

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Auerbach’s solicitor, Rebekah Giles, said in the concerns notice that Lehrmann’s press statement conveyed the defamatory meaning that “Taylor Auerbach lied to the press about Bruce Lehrmann being bought a massage by a Seven Network employee”.

Attack on Lehrmann’s credibility

But it is not the claim about the masseuses that Ten is seeking to elicit from Auerbach in court.

Instead, the network is hoping the former Spotlight producer can shed light on whether Lehrmann was responsible for leaking highly confidential information to Seven which was used in its June 2023 interview with Lehrmann.

That material included Higgins’ text messages as well as extensive pre-interview material with Higgins for The Project, which had been handed over to the Australian Federal Police under a search warrant as it investigated her claim that she was sexually assaulted by Lehrmann in Parliament House in March 2019.

Brittany Higgins leaves the Federal Court last year.

Brittany Higgins leaves the Federal Court last year.Credit: Rhett Wyman

Lehrmann has always maintained his innocence. His ACT Supreme Court criminal trial for sexual assault was aborted in 2022 owing to juror misconduct and a second trial did not proceed owing to concerns about Higgins’ mental health.

If Ten can argue the evidence given by Auerbach casts doubt on a denial by Lehrmann that he was the source of the material, it would form the basis of an attack on Lehrmann’s credibility. It would sit within Ten’s broader argument that Lehrmann’s evidence in the defamation case should not be accepted.

‘A grave and serious allegation’

Matthew Richardson, SC, one of a team of barristers acting for Lehrmann, told the Federal Court in June last year that an allegation had been made by Ten and Wilkinson that “it was the obvious inference that my client had provided material to Channel Seven in breach of his … [legal] obligations” not to use material obtained during his criminal trial for a collateral purpose.

“He absolutely denies that. It is a grave and serious allegation; it is aggravating the damages in this case,” Richardson said. “They have no idea. They are fishing around in the dark. There is a very, very significant pool of people that could have done this.”

University of Sydney Professor David Rolph, an expert in defamation and media law, said that “when a party receives documents or information from another party to the proceedings, that party can only use those documents or information for the purposes of the proceedings”.

“This is sometimes called the Harman undertaking, now known in Australia as the Hearne v Street obligation. Unless the court relieves the party of the obligation, it may be a contempt for the party to use the documents or information for purposes other than the litigation in which they were given.”

Seven’s denial

When Spotlight nominated its Lehrmann program, “Trial and Error”, for Scoop of the Year in the 2023 Walkley Awards, the award administrators were alerted by Ten’s lawyers to a potential breach of the Harman undertaking.

In its letter to Spotlight, the Walkley Foundation asked whether Spotlight had adhered to the media code of ethics requiring journalists to use “fair, responsible and honest means to obtain material”.

Spotlight was asked: “How does the use of leaked phone messages and texts comply with this requirement?”

The program’s then-supervising producer, Steve Jackson, replied: “This material was provided by confidential sources at great personal risk.”

Jackson went on to criticise the Walkleys, saying it was “concerning” that such questions should be asked.

“Responding to this request is fraught with ethical danger given it could reveal whether any of Spotlight’s confidential sources were a party to legal proceedings involving Brittany Higgins and Bruce Lehrmann; and Spotlight considers it concerning that the Foundation would attempt to speculate on, or guess, the identity of the program’s confidential sources.”

Jackson claimed that protecting “whistleblowers” who assisted in providing the leaked material to the program remained “paramount”.

“However, in the interest of full transparency, Spotlight will confirm, as it has already done publicly, that the program did not obtain any material as a result of any person providing confidential documents obtained on subpoena or through the criminal discovery process.

“In other words, there has been no breach of any implied undertaking in the provision of materials to Spotlight of which we are aware.”

Jackson also said that the program “steadfastly rejects any suggestion whatsoever that any material used in its report was obtained by illicit means” and all material was “obtained fairly, responsibly and honestly”.

Spotlight was later stripped of its Walkley finalist status when it was revealed Jackson and executive producer Mark Llewellyn had failed to reveal that their Lehrmann “scoop” had been obtained by the payment of a year’s rent to Lehrmann, worth more than $100,000.

The rental agreement was first exposed during the defamation case.

The Rush case

It is not the first time a media outlet in a defamation case has dropped a bombshell in the form of a mystery witness long after its defence was filed.

In 2018, Sydney’s The Daily Telegraph sought mid-trial to call a woman dubbed Witness X – later revealed to be actor Yael Stone – as part of an amended defence to Geoffrey Rush’s ultimately successful defamation claim over a report accusing him of inappropriate behaviour towards an unnamed Sydney Theatre Company co-star in 2015-16. Federal Court Justice Michael Wigney refused the application.

Geoffrey Rush and his wife Jane Menelaus leave the Federal Court in Sydney in 2019.

Geoffrey Rush and his wife Jane Menelaus leave the Federal Court in Sydney in 2019.Credit: James Brickwood

The Rush case may provide guidance on how Lee will approach the application in the Lehrmann case.

Wigney said the amendments proposed by the Telegraph in the Rush case were “substantial and significant” and raised “entirely new allegations” regarding the actor’s conduct “many years” before the alleged incidents in the newspaper’s reports. Rush would have been forced to return to the witness box to respond to the claims, the judge said.

In rejecting the Telegraph’s application, Wigney said the evidence proposed to be given by Witness X was largely irrelevant to the focus of the newspaper’s articles, which concerned Rush’s alleged conduct during the theatre company’s production of King Lear.

It is by no means clear that Lee will agree that hearing from Auerbach is necessary to resolving the central issues in the Lehrmann case.

At the heart of this case is the former staffer’s claim that he was defamed by Ten and Wilkinson because The Project interview suggested he was guilty of sexually assaulting Higgins in the office of the then Liberal defence industry minister Linda Reynolds in March 2019. The pair worked as advisers to Reynolds at the time.

Lehrmann was not named in the broadcast, and a preliminary issue in the case is whether he was identified by the description given of the alleged perpetrator.

If the court finds he was identified, it will consider Ten and Wilkinson’s defences, including their centrepiece defence of truth. Under that defence, the media parties are seeking to prove to the civil standard, on the balance of probabilities, that Lehrmann raped Higgins.

Auerbach’s evidence at its highest appears relevant to whether Lehrmann is a credible witness and his evidence as a whole should be believed, but it sheds no light directly on the sexual assault allegation.

Whatever the result, the Federal Court’s YouTube channel is likely to be popular on Tuesday.

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