Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369
File number:
NSD 103 of 2023
Judgment of:
LEE J
Date of judgment:
15 April 2024
Catchwords:
DEFAMATION – the Lehrmann imbroglio – underlying controversy a cause célèbre – where applicant sues in defamation over a special edition of The Project programme broadcast by Network Ten – where publications televised and published online – where imputations the applicant raped Ms Higgins in Parliament House in 2019 – where substance of each matter relevantly identical – imputations conveyed
DEFAMATION – identification – where respondents contend the programme did not identify the applicant – where applicant is unnamed in programme – observations as to relevant principles – whether persons with special knowledge of the applicant reasonably understood the publication to concern him – extent of identification – where identification witnesses called – gossip and rumour – identification established
DEFAMATION – defences – substantial truth – s 25 of the Defamation Act 2005 (NSW) – where evidence of two key witnesses unsatisfactory – consideration of relevant principles – requirement to prove rape as that concept is understood by the ordinary viewer of publication – elements of rape considered – non-consent and knowledge elements – recklessness – where applicant indifferent to the rights of Ms Higgins as to ignore the requirement of consent – where applicant raped Ms Higgins – defence established
DEFAMATION – defences – statutory qualified privilege – s 30 of the Defamation Act – proper construction – consideration of relevant principles – separate assessment of conduct of the respondents – distinguishing features of Ms Wilkinson’s conduct – conduct of respondents not reasonable in publication of defamatory matter
DEFAMATION – observations as to other defences – common law justification – Lange defence – common law qualified privilege
EVIDENCE – observations as to fact-finding, onus and standard of proof – difference between civil and criminal standards – credit findings concerning complainant of sexual assault – contemporaneous representations – whether Court bound to accept account of either of the principal witnesses – discussion of need for nuance in credit findings and the flaw in falsus in uno, falsus in omnibus approach – implied admissions and “consciousness of guilt” – Edwards lies
DAMAGES – consideration of counterfactual where substantial truth defence not established – principled approach to assessment including consideration of whether it is licit to award no damages – approach to assessment where lack of apparent connexion between the respondents’ wrong and real cause of distress and hurt – where actual damage to reputation only slight because applicant only entitled to be compensated for the reputation he deserves – improper conduct established – where augmentation of damages occasioned by aggravating conduct comes from a low base – modest award of compensatory damages notwithstanding objective gravity of imputations
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369
Case
[2024] FCA 369
Decision Date
CaseChat Overview and Summary
The case of Lehrmann v Network Ten Pty Limited revolves around a defamation claim brought by Bruce Lehrmann against Network Ten Pty Limited, the broadcaster of a special edition of The Project programme. Lehrmann alleges that the broadcast and online publication of the programme, which implied he raped Brittany Higgins in Parliament House in 2019, defamed him. The dispute was highly publicised, given the broader context of the events and the individuals involved. The court had to determine whether the programme identified Lehrmann as the subject of the defamatory imputations, and if not, whether those with special knowledge of Lehrmann understood the publication to be about him. Additionally, the court examined whether the defamatory imputations were substantially true, and whether the defence of qualified privilege applied. The court also considered other defences, such as common law justification and common law qualified privilege.
The primary legal issues addressed by the court included the identification of Lehrmann in the broadcast, the substantial truth of the imputations, and the applicability of statutory qualified privilege. The court examined whether the broadcast identified Lehrmann, considering the views of those with special knowledge and the nature of the imputations. The substantial truth defence required the court to assess whether the elements of rape, as understood by the ordinary viewer, were proven. The court also evaluated whether the respondents acted reasonably in publishing the defamatory matter, thereby determining if the defence of statutory qualified privilege was applicable.
The court concluded that while the broadcast did not explicitly name Lehrmann, those with special knowledge reasonably understood the publication to concern him, thus satisfying the identification requirement. The court found that the defence of substantial truth was established, as the evidence demonstrated that Lehrmann had raped Ms Higgins, fulfilling the requirements for proving rape. The court also determined that the respondents did not act reasonably in publishing the defamatory matter, thereby negating the defence of statutory qualified privilege. As a result, the court found in favour of Lehrmann on the defamation claim, though the defence of substantial truth precluded an award of damages. The court ordered judgment for the respondents on the statement of claim, with costs submissions to be filed by the parties.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. Judgment for the respondents on the statement of claim.
2. The parties file submissions as to the costs order for which they contend, and any evidence they rely upon in relation to costs, on or by 22 April 2024.
Background
Background to the litigation
I will come to the legal issues, the principles that have guided fact-finding, some observations concerning the credit of various witnesses, and then my findings as to what relevantly went on. But before doing so, I will explain some uncontroversial matters and the issues in the case.B THE PARTICIPANTS AND SOME BACKGROUND FACTS Most of the important facts are contested. This section records some uncontroversial details as to the principal participants, the publications, and this and related proceedings.B.1 The Dramatis PersonaeI Mr Lehrmann Mr Lehrmann was born in 1995 in Texas. His father died in Mr Lehrmann’s infancy. His mother, who was born in Australia, relocated to northern New South Wales with Mr Lehrmann and his younger sister. The family then moved to Toowoomba in Mr Lehrmann’s final years of primary school. From a young age, Mr Lehrmann had a preternatural interest in politics. Upon leaving school, in 2014, he moved to Canberra to undertake study at the Australian National University. His first foray into politics came at the time he started university, as an electorate officer. In March 2016, Mr Lehrmann commenced employment as an office manager with the then Commonwealth Attorney-General, before assuming a role as a health policy advisor to the then Assistant Minister for Health, in August 2017. At the end of 2017, Mr Lehrmann commenced employment as a health policy advisor with the then Minister for Rural Health and Sport, a position he held until October 2018, when he became a policy advisor to the Hon Senator Linda Reynolds CSC, then Assistant Minister for Home Affairs. II Ms Higgins Ms Higgins was born in Queensland in 1994. She grew up on the Gold Coast, completing her schooling there and later graduated from Griffith University. In 2017, she was employed as a staffer for Mr Samuel O’Connor MP, a member of the Queensland Parliament. Ms Higgins moved to Canberra around September 2018 to commence work as an administrative assistant in the Ministerial office of the Hon Steven Ciobo MP. Around this time, she began a relationship with Mr Benjamin Dillaway, the media advisor to Mr Ciobo, which lasted until February or early March 2019. The pair remained close (and at times intimate) friends. In early March 2019, Mr Ciobo announced his pending resignation and, shortly thereafter, Senator Reynolds received a commission to become the Minister for Defence Industry. Ms Higgins was then successful in her application for a role as an administrative officer and junior media advisor in Senator Reynolds’ office. III Ms Wilkinson Ms Wilkinson has been a journalist for over forty years. She has held a wide range of prominent roles. Her beginnings were in print journalism. Her first job was as an editorial assistant and cadet journalist at Dolly magazine. She held various roles at Dolly and Cleo magazines from 1978 to 1995, including rising to become editor-in-chief of both magazines from 1988 to 1995, and was editor-at-large of the Australian Women’s Weekly from 1999 to 2007.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Mr Lehrmann became aware of the Maiden article around the time it was published. I have set out the relevant chronology in Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385 (limitation judgment) and do not propose to repeat it here. It suffices to note that by 2pm that day, Mr Lehrmann had been informed that “government sources” were identifying him as the man accused of sexually assaulting Ms Higgins. His work supervisor, Mr Joshua Fett, informed Mr Lehrmann that Ms Rosie Lewis, a journalist at The Australian, had emailed Mr Fett to this effect. That evening, Network Ten broadcast the Project programme, and republished it on the 10 Play website and The Project’s YouTube channel shortly thereafter. Mr Lehrmann watched the broadcast live from his then solicitor’s office. It is common ground that the television broadcast attracted a national audience of over 725,000 people, from every state and territory. The publication on the 10 Play website had over 17,000 views, and the publication on YouTube had nearly 190,000 views. B.3 The Criminal Proceeding On 17 August 2021, Mr Lehrmann was charged with one count of engaging in sexual intercourse with Ms Higgins without her consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act). On the same day, Mr Lehrmann was identified by “mainstream” media outlets as the person accused of the offence by Ms Higgins. The trial was originally fixed to commence in the Supreme Court of the Australian Capital Territory on 27 June 2022, but was vacated by McCallum CJ six days earlier for reasons explained in R v Lehrmann (No 3) [2022] ACTSC 145; (2022) 299 A Crim R 276. The trial ultimately commenced before McCallum CJ and a jury of sixteen on 4 October 2022. A jury of twelve retired on 19 October 2022 and was discharged eight days later by reason of juror misconduct. On 2 December 2022, the Director of Public Prosecutions, Mr Shane Drumgold SC, announced that he did not intend to proceed with the prosecution. The reason was said to be the ill-health of the complainant, Ms Higgins.B.4 Procedural History Mr Lehrmann brought this proceeding and a (now discontinued) proceeding against News Life Media and Ms Maiden (News Life proceeding) out of time, requiring him to seek an extension of the limitation period, which was granted for the reasons given in the limitation judgment. He later commenced a proceeding within time against the ABC (ABC proceeding) in relation to the broadcast of an address given by Ms Higgins, alongside Ms Grace Tame, at the National Press Club in February 2022. The ABC proceeding travelled with this proceeding until the first day of the trial, when a settlement was formalised. In December 2023, competing cross-claims were filed in this Court as between Ms Wilkinson and Network Ten in relation to an indemnity for legal costs (cross-claims). I directed that the cross-claims be heard separately, and they have been the subject of a judgment (Lehrmann v Network Ten Pty Limited (Cross-claims) [2024] FCA 102 (cross-claims judgment)). The only present relevance of the cross-claims is that each party agreed that evidence on the cross-claims be evidence in this proceeding. C THE PUBLICATIONS