Photo: Jeremy Piper/AAP
Network Ten lawyers have asked “how on earth” was it reasonable for Bruce Lehrmann to sit on his hands and not file a defamation lawsuit for 12 months despite being told he had a “red-hot defamation case”, who would “make” millions” and that he would not have to fear prosecution.
Lehrmann is trying to convince federal court to grant him an extension of the usual 12-month period for filing defamation suits, blaming the criminal process, prior legal advice, not immediately filing defamation proceedings, and his mental health for the delay.
On Thursday, the court was expected to hear evidence from Lehrmann’s former attorney, Warwick Korn, about the advice he gave his then-client after News Corp and Network Ten first publicized Brittany Higgins’ rape allegations on February 15, 2021.
Lehrmann said Korn told him to wait until the criminal case was resolved before filing a defamation lawsuit.
Related: Bruce Lehrmann asked friends if they had “any gear” on the day rape allegations were reported, court-filed messages reveal
However, Korn was not called to testify Thursday, a change Network Ten’s attorneys called “notable.”
Lehrmann and the media instead presented Judge Michael Lee with their final arguments on whether the 12-month period should be extended.
Network Ten representative Matthew Collins KC said it was clearly not appropriate for Lehrmann not to file the defamation lawsuit within a year.
Collins said a series of text messages to his then-girlfriend and friends, sent from Korn’s office on the day of the initial publications in News Corp and Network Ten, show he was advised not to worry about prosecution , and that he could make millions of dollars in a libel lawsuit.
“If I’m named tonight, he’ll say I have millions as slander,” Lehrmann told his then-girlfriend in a message.
In another text, he indicated he had received advice that he would not face criminal charges and that the criminal charges “would not see the light of day in a courtroom”.
He said Lehrmann was effectively told, “You’ve got a red-hot defamation case, you’re going to make millions, don’t worry about prosecution.”
Not filing a defamation lawsuit in such circumstances is clearly not appropriate, Collins said.
“They have a plaintiff who says I’m primarily focused on my reputation, I’ve been told there will be no charges, I’m looking for a PR agent, I’m looking to speak to the media … yet isn’t sending out a notification of concern.” , does not even notify the defendants with a claim,” Collins told the court.
Lehrmann has since said he never received such legal advice. He says the lyrics were fabricated to put on a “brave face” and reassure his then-girlfriend and friends.
Collins said Lehrmann’s claims about the fabrication of the lyrics were “inherently implausible”.
Previously, Matthew Richardson SC, representing Lehrmann, had argued that the criminal charges filed against his client in August 2021 and the prospect of those charges meant that had Lehrmann “faced prejudice” had he brought a defamation lawsuit within the usual time limit . year deadline.
Richardson said the risk of prejudice was reason enough for Lehrmann not to have filed a defamation lawsuit in 12 months.
If Lehrmann had filed defamation charges, it might have required him to testify in a civil trial before a criminal trial, which would have compromised his right to remain silent, Richardson said.
“Our position is that launching a civil suit on almost exclusively the same issues would have exposed him to prejudice,” he said.
But both Network Ten and Wilkinson denied that he may have faced prejudice.
Sue Chrysanthou SC, representing Wilkinson, questioned why Lehrmann had not even sent a letter of demand or a statement of concern to the media for two years.
The court heard Wilkinson was not notified until a day after the defamation lawsuit began. Other publishers, including News Corp, Network Ten and Samantha Maiden, received notice of the claim on Dec. 16.
That indicated that Lehrmann never wanted to settle with Wilkinson, Chrysanthou said.
“He always planned to sue her, she was at the top of his list,” Chrysanthou said.
Chrysanthou said there was no explanation for the fact that Lehrmann didn’t send any letters of formal notice or concerns to any of the publishers, almost two years after the first publications.
“Why has he never sent a notice of concern within the statute of limitations that has not been explained, why hasn’t a notice of concern been sent? Or even just a letter of formal notice to my client saying, “I intend to sue you, keep me posted,” she said.
“There was no explanation for this and it is a highly relevant matter for the exercise of discretion [to extend].”
Collins said any prejudice could have been avoided simply by postponing the defamation trial until after the criminal case had been completed, which was common practice.
Even if he first had to testify in a defamation suit, Lehrmann could have obtained certificates preventing his testimony from being used against him in criminal proceedings.
Richardson argued it was clear that federal police were actively investigating the allegations well before charges were filed in August 2021, and brought the court to police testimony in March this year.
Richardson also said it was unlikely that an attorney would ever have told Lehrmann that he would not be prosecuted, given what had appeared in the media.
No competent lawyer would have said such a thing to Lehrmann.
“It’s just silly, in my respectful submission, that such a thing would have been said,” he told the court.
Chrysanthou said there are many high-profile examples where public figures have immediately filed defamation lawsuits after being accused of criminal behavior in public media, which has given rise to the possibility of criminal prosecution.
“The notion that there is a general or common rule in favor of an extension because there is a possibility of criminal charges cannot be right, and neither is the notion that there is a common rule when charges have already been filed.” , she said.
Lehmrann denies raping Higgins and pleaded not guilty in a previous trial that was dropped because of jury misconduct. A retrial was not pursued due to concerns about Higgins’ mental health.
The two-day hearing ended late Thursday afternoon. Lee will make a decision at a later date.
The court heard it would be many months before the case went to trial. Lehrmann’s legal team said they were not ready to proceed in August due to their limited resources. The trial will take at least four weeks, the court said.