Defamation in the News: Michael Finch on the Lehrmann Defamation Case
HFK’s Defamation Partner, Michael Finch, spoke with ABC Radio Host Paul Culliver on ABC Newcastle Drive regarding the Federal Court’s findings in the Bruce Lehrmann defamation proceedings.
To listen to the interview, watch the full ABC Radio discussion below. You can also read the transcript underneath.
ABC Newcastle Drive Interview Transcript
Federal Court Findings in the Lehrmann Defamation Case
Paul (Host): Justice Michael Lee delivered a lengthy exposition of his findings this afternoon. The Federal Court has found, on the balance of probabilities, that Bruce Lehrmann raped Brittany Higgins at Parliament House in 2019.
Early in his remarks, Justice Lee assessed the credibility of key witnesses, noting significant concerns regarding their reliability. Later, he made a definitive statement:
“Mr Lehrmann raped Ms Higgins. I hasten to stress this is a finding on the balance of probabilities. This finding should not be misconstrued as a criminal conviction. There is a substantive difference between the criminal and civil standards of proof.”
The findings were delivered in relation to the defamation claim brought by Mr Lehrmann against Network Ten and Lisa Wilkinson, which ultimately failed. The Court accepted Network Ten’s substantial truth defence.
Michael Finch’s Initial Takeaways
Michael Finch: This is certainly one of the most significant cases of the decade. Justice Lee’s judgment, reportedly spanning more than 300 pages, reflects the complexity and gravity of the matter.
The decision required careful consideration of extensive evidence and competing witness credibility. Justice Lee ultimately made a finding at the civil standard of proof, which is critical to understand. This was not a criminal conviction, but a determination based on the balance of probabilities.
Civil Standard vs Criminal Standard
The earlier criminal proceeding had been abandoned due to juror misconduct. In contrast, this was a civil defamation case, requiring Justice Lee to determine whether Network Ten had established the truth of the allegations to the civil standard.
Justice Lee considered whether:
- The sexual act occurred
- There was consent
- The conduct amounted to rape under the common understanding of the term
In defamation proceedings, courts often apply what is informally referred to as the “pub test”, meaning how an ordinary person would interpret the allegation. Justice Lee adopted a structured approach to determine whether the substantial truth defence was made out.
What Happens Next?
Paul: Might we see an appeal? What happens regarding legal costs?
Michael Finch: Given the magnitude of the case, it would not be surprising to see an appeal or at least the prospect of one. As to costs, civil proceedings generally follow the event, meaning the unsuccessful party may be ordered to pay the successful party’s legal costs. However, costs remain at the discretion of the Court.
With two defendants involved, Network Ten and Lisa Wilkinson, any costs determination could be substantial.
Ongoing Legal Significance
This decision has significant implications for Australian defamation law, particularly regarding the operation of the substantial truth defence and the distinction between civil and criminal standards of proof.
The matter continues to attract national attention and may yet evolve further through appeal proceedings.
Need Advice on Defamation Law?
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