TV producer Taylor Auerbach, described in the federal court as “dancing in the sunlight for two weeks”, will be the star witness on Thursday when Channel Ten re-opens its defence of the defamation action brought by Bruce Lehrmann.
The former Spotlight program producer, 32, burst into the high-profile case last month just before its final act, delaying the verdict and potentially changing the outcome.
Justice Michael Lee was to rule on whether the former Liberal staffer was defamed by Lisa Wilkinson and Ten when The Project broadcast an interview with Brittany Higgins in 2021 in which she alleged she had been raped in parliament house.
Auerbach will give his evidence on the very day Lee was scheduled to deliver the verdict in Lehrmann v Ten & Ors: 4 April.
On Tuesday Lee ordered that Channel Ten be granted leave to reopen its evidentiary case and that Channel Seven, which aired two exclusive interviews with Lehrmann in 2023, be in court on Thursday morning.
Seven has also been ordered to return two subpoenas it received in June and August relating to any documents they may have obtained from Lehrmann for the Spotlight program.
In its original response to the subpoena from Ten to produce documents in June 2023, Seven said “there are no written communications or records of communications to produce pursuant to the subpoeana”.
According to multiple documents on the federal court file, Ten has alleged that Seven received material from Lehrmann and Seven has always denied it.
So why has the case been reopened?
Counsel for the respondent, Network Ten, raised questions in an emergency late night hearing on Tuesday about whether parts of Lehrmann’s evidence in the federal court defamation case may have been false, arguing that “fresh evidence” needed testing.
The main two matters relate to how much Seven spent on wooing Lehrmann and what confidential material from his criminal trial, if any, Lehrmann handed over to Seven.
The allegations by Auerbach that have grabbed headlines relate to a claim that Seven paid thousands of dollars for massages, drugs, sex workers, accommodation and meals for Lehrmann while they tried to get him over the line for an exclusive interview. The allegations are yet to be tested by the court.
While not illegal, Seven has always insisted Lehrmann was not paid, it only helped with accommodation during filming and Lehrmann only declared the $104,000 in rental accommodation he was paid.
Ten alleges that Lehrmann and Seven have not been honest about the financial benefits received by the interviewee.
The possible supply of any documents to Seven is relevant to the defamation case because Seven, Lehrmann and Lehrmann’s counsel have all denied anything passed between them.
If proven, the evidence could go both to Lehrmann’s credibility and raise questions as to whether he abused the court process, which may affect the quantum of any damages he is awarded should his claim be successful.
Dr Matt Collins KC, for Ten, raised questions before Lee about whether Lehrmann may have given false instructions to his solicitors and whether he may have committed “a very serious contempt by providing material subject to an implied undertaking to Seven”.
Ten alleges in its submission that Lehrmann has “in the conduct of this proceeding, engaged in an extreme abuse of process”, given evidence that was “wilfully false” and “committed a disgraceful contempt that warrants a referral for prosecution”.
What does Ten argue may be false evidence?
In the interview on the Spotlight program, materials which were subpoenaed in the criminal trial such as Parliament House security video and audio from a meeting between Higgins, Wilkinson and The Project’s producer, Angus Llewellyn, were aired.
Lehrmann, both in the witness box and through his counsel, has maintained he gave Seven nothing but an interview.
During the five-week trial last year he was asked by Sue Chrysanthou SC, for Wilkinson, whether he gave, in addition to interviews, “all information, documents, film, video, photographs, items and assistance” to Seven.
Lehrmann responded: “No, I just gave an interview.”
Auerbach, who was involved in efforts to sign up Lehrmann with Seven for an exclusive interview, has sworn an affidavit alleging that Lehrmann did supply Spotlight with material, including thousands of pages of “deeply personal” text messages between Brittany Higgins and her then boyfriend, Ben Dillaway.
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The texts were made available by the Australian Federal Police to Lehrmann for his defence during the ACT supreme court criminal trial.
In the criminal trial in 2022, Lehrmann pleaded not guilty to one charge of sexual intercourse without consent, denying that any sexual activity had occurred.
In December of that year prosecutors dropped charges against him for the alleged rape of Higgins, saying a retrial would pose an “unacceptable risk” to her health.
Auerbach alleges in an affidavit he had observed a “large lever arch hardback folder” Lehrmann brought to Seven containing what he saw to be “about 500 pages of documents”.
“I viewed some of the documents that were being copied and could see that they were exhibits from the applicant’s criminal proceedings,” he claims. “I saw by way of example Ms Higgins’ text messages.”
He also alleges he was told by Seven executives and legal counsel to delete “any materials that could be damaging to Seven”.
Auerbach: “I followed this direction and permanently deleted anything that I could find on my computer and phone at the time”.
So why does it matter if Lehrmann did give Spotlight any material?
It matters because, if true, it may be a breach of the implied Harman undertaking, which is a way the court ensures that sensitive information disclosed during legal proceedings is not used inappropriately outside those proceedings.
According to documents in Ten’s affidavit, Ten made “exhaustive inquiries in an attempt to identify the source of the material provided to Seven in apparent breach of the implied undertaking protecting materials produced, but not tendered, in the ACT criminal proceedings”.
“Those inquiries were hamstrung by the responses it received from the applicant’s solicitors and the solicitors for Seven, and the representations and submissions made on instructions on behalf of the applicant set out above.”
The allegations made by Auerbach and Ten will be tested in court on Thursday, including the claim that Lehrmann may have breached Harman undertakings in connection with the provision of material to Seven.
Auerbach will give evidence at 2.15pm after flying in from New Zealand on Tuesday night.
He is likely to be cross-examined about the alleged use of a Seven credit card to book the former Liberal staffer a $1,000 Thai masseuse, as well as eight separate charges for Sensai Thai Massage on 26 November 2022, totalling $10,315.
Seven will also be called to answer questions about its use of the material on the Spotlight program.
A Seven spokesperson said the claims were untested.
“We strongly reject the false and misleading claims relating to the broadcast of material in the Spotlight program. Seven has never revealed its source or sources and has no intention of doing so. Seven notes Mr Lehrmann’s court testimony last year that he was not the source. Furthermore, Seven did not condone or authorise the alleged payments to Mr Lehrmann referred to in the affidavits.”
After what is expected to be a two-day hearing, Lee will revisit his judgment over the weekend and said he hopes to deliver his decision next week.
