Federal Courtroom Justice Michael Lee should flip his thoughts to 4 key questions in Bruce Lehrmann’s defamation case in opposition to Community Ten and Lisa Wilkinson.
1. Was Lehrmann recognized by The Mission?
To achieve the case, Lehrmann should set up that he was recognized when Higgins appeared on Ten’s The Mission on February 15, 2021, and accused an unnamed colleague of raping her in 2019 within the workplace of then-defence business minister Linda Reynolds, for whom they labored as advisers.
Lehrmann’s attorneys argue the outline of the alleged perpetrator allowed “a big, indeterminate variety of individuals” in Canberra and elsewhere to establish him, together with by reference to different sources. Ten and Wilkinson dispute this.
College of Sydney professor David Rolph, an professional in defamation legislation, mentioned it could be sufficient for a plaintiff or applicant to point out that “one particular person apart from themselves noticed the printed and understood it to consult with them” so as to set up legal responsibility.
“Nonetheless, the quantity of people that recognized the applicant from the printed is related to the evaluation of damages,” he mentioned. A really small viewers would warrant a smaller damages award.
Lehrmann known as a household buddy and two former Liberal staffers to present proof on this difficulty.
If Lehrmann can not set up he was recognized, his lawsuit fails on the first hurdle.
2. Has the defence of fact been established?
If Lee finds Lehrmann was recognized, Ten and Wilkinson’s chief defence within the case is fact.
Underneath the reality defence, Ten and Wilkinson are looking for to show to the civil normal – on the stability of possibilities, that means it’s extra seemingly than not – that Lehrmann raped Higgins.
Whereas that is much less onerous than the legal normal of proof past affordable doubt, the so-called Briginshaw precept applies in civil circumstances involving severe allegations and requires courts to proceed cautiously in making grave findings.
If the reality defence is established, Lehrmann loses the case.
3. Has the defence of certified privilege been established?
Within the occasion the reality defence fails, Ten and Wilkinson are looking for to depend on a defence of certified privilege, which protects publications of public curiosity the place a media outlet has acted fairly. This places the actions of the broadcaster and its star presenter in sharp focus.
Ten and Wilkinson have separate authorized illustration, and it’s attainable that Lee will make totally different findings in opposition to the community and its former star presenter. Wilkinson stays employed by Ten however has not appeared on air since 2022.
If the certified privilege defence is profitable, Lehrmann loses the case.
4. If the defences fail, what’s the acceptable award of damages?
Ought to each of the media events’ defences be rejected, Lehrmann wins the case and Lee should think about the suitable quantity of damages.
Damages for non-economic loss in defamation circumstances are capped at $459,000, a determine that’s elevated yearly. Lehrmann has additionally sought aggravated damages, which can be awarded on prime of that determine.
Attorneys for Ten and Wilkinson have argued this can be a case warranting an award of zero or nominal damages if their defences fail however the decide additionally finds Lehrmann lied in his proof and didn’t give a reputable account of what occurred in Parliament Home on March 23, 2019.
Authorized consultants differ on whether or not zero, versus nominal, damages could also be awarded to a profitable defamation claimant.