Justice Michael Lee will allow Channel Ten to present additional evidence in its defence of the defamation case brought by Bruce Lehrmann, delaying the judgment until next week.
The case will be reopened and the evidence of a new witness, former Seven producer Taylor Auerbach, will now be tested on Thursday, the day the judgment was to have been handed down.
Lehrmann is suing Ten and its presenter Lisa Wilkinson for defamation over an interview with Brittany Higgins on The Project in which she alleged she was raped in Parliament House in 2019.
Lee asked Ten’s barrister, Matt Collins KC, why the fresh evidence was materially relevant to the pending judgment.
Collins said the evidence goes both to Lehrmann’s credibility and to whether he abused the court process, which may affect the quantum of damages.
The federal court heard Lehrmann may have leaked confidential material he received in his ACT criminal trial to the Seven network’s Spotlight program, potentially in breach of an implied undertaking not to do so.
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.
Collins told the court during an 11th-hour hearing on Tuesday that Lehrmann may have breached an undertaking to keep material, not previously made public, confidential.
“In the lead-up to this defamation trial, and after the criminal proceedings had terminated, Mr Lehrmann chose to go on national television,” Collins told the court.
“He told a series of falsehoods to a national audience on Spotlight. It is, in our submission, the definition of an abuse of process.
“The material that had not previously been in the public domain was broadcast [on Seven]. And it was material that was contained within the e-brief, the Australian federal police e-brief, and it was material that had not been tendered in the course of the ACT supreme court proceeding.”
The material included hundreds of pages of “deeply personal” text messages between Higgins and her then boyfriend, Ben Dillaway.
Collins said Auerbach’s affidavit outlines how Seven was able to obtain the material used in two Spotlight interviews, including Higgins’ text messages, Parliament House security video and audio from a meeting between Higgins, Wilkinson and The Project’s producer, Angus Llewellyn.
Sue Chrysanthou SC, for Wilkinson, said Lehrmann had not been entirely honest about the financial benefits that he received from Seven, which included free rent.
“It’s quite a complicated set of financial affairs,” Chrysanthou said.
“But it appears to, if accepted, demonstrate that neither Network Seven – who were required to respond to subpoenas – nor Mr Lehrmann had been entirely honest about the financial benefits that Mr Lehmann received.”
Matthew Richardson SC, for Lehrmann, argued that the new evidence was “trivial” and it was not worth reopening the case for.
Richardson said the additional financial benefits received by Lehrmann from Seven were three weeks rent amounting to $12,000 on top of the $104,000 that was already disclosed.
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The court heard Lehrmann may have given instructions to his legal team that may not have been truthful.
Under cross-examination in the defamation trial last year, Lehrmann said he gave Seven an interview only, despite his exclusivity contract saying he was required to give the network all relevant documents.
The 11th-hour bid to reopen the case came after the three legal teams had already made their final submissions last month: Collins for Ten, Chrysanthou for Wilkinson and Steve Whybrow SC for Lehrmann.
When Ten received additional information about Lehrmann’s dealings with the network’s Spotlight program, Network Ten’s lawyers applied for an urgent interlocutory hearing on Easter Sunday.
Auerbach will be cross-examined about the alleged use of a Seven credit card to book the former Liberal staffer a $1,000 Thai masseuse.
Lehrmann rejected this claim, telling News Corp: “It’s an untrue and bizarre story from a disgruntled ex-Network Seven producer. Network Seven [has] only ever covered reasonable travel for filming and accommodation.”
Auerbach issued defamation proceedings against Lehrmann after the former Liberal staffer made the statements, which his lawyer said were false and conveyed a defamatory imputation.
The court heard in December that under the exclusivity agreement the network would have access to all relevant documents, but Lehrmann denied giving them any documents.
The court heard on Tuesday the Seven Network was subpoenaed to provide all documents used in the Spotlight program but produced nothing.
At the trial, attended almost every day by Lehrmann and Wilkinson, who sat at opposite ends of the courtroom, the applicant denied raping Higgins or having any sexual relations with her at all.
Lehrmann has consistently maintained his innocence.
