Federal Court Justice Michael Lee is tasked with considering four key questions in Bruce Lehrmann’s defamation case against Network Ten and Lisa Wilkinson. The first question is whether Lehrmann was identified by The Project when Brittany Higgins accused an unnamed colleague of raping her in 2019. Lehrmann’s lawyers argue that the description of the alleged perpetrator allowed for identification, while Ten and Wilkinson dispute this. The number of people who identified Lehrmann from the broadcast is relevant to the assessment of damages.
The second question is whether the defence of truth has been established by Ten and Wilkinson. They are seeking to prove that Lehrmann raped Higgins on the balance of probabilities. The Briginshaw principle applies in civil cases involving serious allegations, requiring courts to proceed cautiously in making grave findings. If the truth defence is established, Lehrmann loses the case.
In the event that the truth defence fails, the defence of qualified privilege is the next consideration. This defence protects publications of public interest where a media outlet has acted reasonably. The actions of the broadcaster and its star presenter, Lisa Wilkinson, are under scrutiny in this context. Should the qualified privilege defence be successful, Lehrmann loses the case.
If the defences of truth and qualified privilege fail, Justice Lee must then determine the appropriate award of damages. Damages for non-economic loss in defamation cases are capped, but Lehrmann has also sought aggravated damages. Ten and Wilkinson’s lawyers argue that zero or nominal damages may be appropriate if their defences fail and Lehrmann is found to have lied in his evidence. Legal experts have differing opinions on whether zero damages may be awarded to a successful defamation claimant.
Overall, Justice Lee must decide whether Lehrmann was identified in The Project broadcast, whether the defence of truth has been established, whether the defence of qualified privilege applies, and if not, what the appropriate award of damages should be. The case hinges on these key questions and the evidence presented by both parties. The outcome will have implications for defamation law and the assessment of damages in similar cases in the future.
