Lehrmann v Network Ten Pty Limited (Covert Recording)

FEDERAL COURT OF AUSTRALIA

Lehrmann v Network Ten Pty Limited (Covert Recording) [2023] FCA 1586

File number:

NSD 103 of 2023

Judgment of:

LEE J

Date of judgment:

12 December 2023

Date of publication of reasons:

13 December 2023

Catchwords:

EVIDENCE – admissibility of covert recordings of two conversations made by Ms Brittany Higgins– whether s 10 of the Listening Devices Act 1992 (ACT) “picked up” in federal jurisdiction– provision not picked up as s 56(1) of the Evidence Act 1995 (Cth) “otherwise provides” – recordings admitted

Legislation:

Evidence Act 1995 (Cth) ss 55, 56(1), 136

Judiciary Act 1903 (Cth) ss 79, 79(1)

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 9(3)

Listening Devices Act 1992 (ACT) s 10

Cases cited:

Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451

Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 292 FCR 336

Division:

General Division

Registry:

New South Wales

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

25

Date of hearing:

12 December 2023

Counsel for the Applicant:

Mr S Whybrow SC and Mr M Richardson SC with Mr N Olson and Mr D Helvadjian

Solicitor for the Applicant:

Mark O’Brien Legal

Counsel for the First Respondent:

Dr M Collins KC with Mr T Senior

Solicitor for the First Respondent:

Thomson Geer Lawyers

Counsel for the Second Respondent:

Ms S Chrysanthou SC with Mr B Dean

Solicitor for the Second Respondent:

Gillis Delaney Lawyers

ORDERS

NSD 103 of 2023

BETWEEN:

BRUCE LEHRMANN

Applicant

AND:

NETWORK TEN PTY LIMITED ACN 052 515 250

First Respondent

LISA WILKINSON

Second Respondent

ORDER MADE BY:	LEE J
DATE OF ORDER:	12 DECEMBER 2023

THE COURT RULES THAT:

1.The covert recordings made by Ms Brittany Higgins of:

(a)the conversation between Ms Higgins and Mr Daniel Try on 28 January 2021; and

(b)the conversation between Senator Michaelia Cash, Ms Higgins and Mr Try on 5 February 2021,

be admitted into evidence.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR RULING
(delivered ex tempore, revised from the transcript)

LEE J:

1. During the cross-examination of Ms Brittany Higgins almost two weeks ago, counsel for Mr Bruce Lehrmann, Mr Whybrow SC, sought to play an audio recording of a conversation between Senator Michaelia Cash, Ms Higgins and the Senator’s chief of staff, Mr Daniel Try, on 5 February 2021. It is common ground that the recording was made by Ms Higgins after she had started engaging with Network Ten Pty Limited (Network Ten) to make allegations of rape and obstruction. It is also uncontroversial that it was made secretly and hence without the consent of the other participants.

2. When the tender was proposed, I asked whether the recording was a “covert recording of a telephone … conversation”: T854.18–19. Mr Whybrow confirmed that it was. Discussion then took place as to whether the adduction into evidence of the recording and the playing of the recording could contravene the Listening Devices…