Mon May 1

Why was Bruce Lehrmann given the all-clear to sue media for defamation? A media law expert explains

Written by David Rolph, Professor of Law, University of Sydney

Former Liberal Party staffer Bruce Lehrmann has been given the all-clear to continue with defamation proceedings ^[1] against several media outlets and journalists regarding reporting about Brittany Higgins’ rape allegations.

Lehrmann has always maintained his innocence, and no finding has been made against him. The rape trial was abandoned last year following juror misconduct, and a second trial was not pursued amid fears for Higgins’ mental health.

Lehrmann is suing the Ten Network and former presenter of The Project Lisa Wilkinson, as well as News Life Media (the publisher of news.com.au) and journalist Samantha Maiden.

In New South Wales since 2002, and across Australia since the beginning of 2006, the limitation period for defamation claims is one year. However, the court has the power to extend the limitation period for up to three years.

Lehrmann needed the court to extend the limitation period because both Maiden’s story on news.com.au, and Wilkinson’s interview with Higgins on The Project, took place in mid-February 2021. Lehrmann commenced his defamation proceedings in the Federal Court almost two years later.

On Friday, Justice Michael Lee of the Federal Court of Australia extended the limitation period in these two defamation proceedings brought by Lehrmann.

As Justice Lee observed at the outset of his judgement:

Any sentient person with an interest in newsworthy events in Australia would be familiar with the general background to the present disputes.

To have the limitation period extended, Lehrmann needed to persuade the court that it was “not reasonable in the circumstances” for him to have commenced his proceedings within the one-year limitation period.

If the court was persuaded, it would be required to extend the limitation period, although it had discretion as to the length of the extension.

Justice Lee was satisfied that it was “not reasonable in the circumstances” for Lehrmann to have commenced defamation proceedings within the one-year limitation period.

This was mainly because it was not reasonable to commence defamation proceedings while criminal allegations were unresolved. This was the legal advice Lehrmann received from the solicitor with criminal law expertise he consulted.

As Justice Lee stated:

Whatever way one looks at it, for Mr Lehrmann to have started defamation proceedings absent the resolution of the criminal allegations would have been for him to take a step into the unknown. Everything might well have worked out, and all respondents may have been passive, but one cannot discount as misconceived advice that taking the risk of starting was imprudent and distracting while criminal allegations were unresolved.

Justice Lee’s decision followed a decision of the Full Federal Court in Joukhador v Ten Network Pty Ltd in 2021.

In that case, the court stated that, in general, where a person is facing a criminal charge and the publication being sued upon raises an issue about the person’s guilt or innocence, it will ordinarily not be reasonable to commence defamation proceedings within the one-year limitation period.

Justice Lee therefore extended the limitation period in both of the proceedings.

In April this year, Lehrmann also commenced defamation proceedings against the ABC. This concerned the broadcast of the National Press Club address by Higgins and Grace Tame in February 2022.

Justice Lee indicated that he was inclined to hear all three proceedings together.

Justice Lee also raised the prospect that the case may be an appropriate one for trial by jury. This is significant because civil trials in the Federal Court are presumptively heard by a judge sitting alone. However, the court has the power to order trial by jury if “the ends of justice appear to render it expedient to do so”.

The Federal Court has only ordered a jury trial in civil proceedings once before ^[3]. In 2009, Justice Rares ordered a jury trial in defamation proceedings brought against The Daily Telegraph for reporting about sexual servitude allegations (the matter then settled before the trial).

Justice Lee sought submissions from the parties as to whether there should be a jury trial in this case. Jury trials tend to take longer and are therefore costlier than trials by judge alone.

If a defamation case is brought in a State Supreme Court (other than in South Australia), either party can elect to have trial by jury. Juries are not available in defamation cases in the territories.

The possible trial date is mid-November this year, lasting for approximately four weeks.