By: Richard Leder, Georgie Austin, Blake Pappas and Bella Marazita

The Federal Court’s decision in Lehrmann v Network Ten Pty Limited (Lehrmann case) serves as another cautionary tale for prospective plaintiffs who are tempted to use defamation litigation as a vehicle to challenge serious allegations of criminal wrongdoing in order to vindicate themselves.

The Lehrmann case is the most recent example of a Court applying the civil standard of proof to determine that on the ‘balance of probabilities’ the plaintiff is guilty of the criminal conduct that is the subject of their defamation claim, leaving the plaintiff’s reputation in worse shape than when they commenced proceedings.

We take a closer look at the critical findings in Justice Lee’s judgment of 15 April 2024, and consider the risks for plaintiffs who bring defamation proceedings below.

Background facts

On 15 February 2021, Network Ten aired a segment on its programme The Project, presented by journalist, Lisa Wilkinson. The segment concerned allegations of sexual assault by former political staffer, Brittany Higgins, against a colleague. The colleague was not named in the segment. In 2023, Bruce Lehrmann commenced proceedings in the Federal Court against Network Ten and Lisa Wilkinson alleging that they had defamed him by imputing he raped Ms Higgins in Defence Minister Linda Reynolds’ office in 2019.

Network Ten and Wilkinson defended the proceedings by pleading the defences of justification (otherwise known as the ‘truth defence’) and qualified privilege.

Why did Mr Lehrmann’s case fail?

Justice Lee found the defence of justification to be made out. To establish this defence under s25 of the Defamation Act 2005 (NSW), the Defendants were required to prove the substantial truth of each imputation, meaning it is true in substance or not materially different from the truth. As Justice Lee observed, it is sufficient if the “sting” or “gravamen” of an imputation is substantially true.

The key question was whether Mr Lehrmann raped Ms Higgins in Parliament House in 2019. The trial was conducted with the following rape elements needing to be established: Mr Lehrmann had sexual intercourse with Ms Higgins; without Ms Higgins’ consent; and knowing Ms Higgins did not consent.

The elements were to be assessed against the civil standard of proof, being ‘on the balance of probabilities’, as opposed to the criminal standard of proof, which is ‘beyond reasonable doubt’, because defamation proceedings are civil, and not criminal, in nature. The criminal standard of proof is a higher threshold and is harder to satisfy than the civil standard.

In order to find that Mr Lehrmann raped Ms Higgins, it was unnecessary for Justice Lee to reach a level of certainty indispensable to criminal liability. Justice Lee was asked to find, on the balance of probabilities, that Mr Lehrmann raped his colleague Ms Higgins in Parliament House in 2019. Network Ten and Wilkinson were successful in their defence because they were able to prove that the whole of the evidence, when properly analysed, established on the balance of probabilities that there were sufficient facts to make out the truth defence, therefore it was not necessary for Justice Lee to exclude all other possibilities as to what happened in order for the truth defence to succeed. Justice Lee took a principled approach of fact-finding. Having identified why, on the basis of credibility assessments and other evidence, he rejected the entirety of Mr Lehrmann’s account as to what occurred in the Ministerial Suite, and on the balance of probabilities found that Mr Lehrmann did rape Ms Higgins.

“Mr Lehrmann raped Ms Higgins. I hasten to stress; this is a finding on the balance of probabilities. This finding should not be misconstrued or mischaracterised as a finding that I can exclude all reasonable hypotheses consistent with innocence. As I have explained, there is a substantive difference between the criminal standard of proof and the civil standard of proof and, as the tribunal of fact, I have only to be reasonably satisfied that Mr Lehrmann has acted as I have found, and I am not obliged to reach that degree of certainty necessary to support conviction upon a criminal charge.”

That being the case, Justice Lee found that the justification defence was made out and Mr Lehrmann was not entitled to the vindication of his reputation.

Defence of qualified privilege

Network Ten and Wilkinson also relied on the defence of qualified privilege under s30 of the Defamation Act, which provides a defence if, among other things, the respondents prove their conduct in publishing the matter was ‘reasonable in the circumstances’.

Justice Lee found that the defence was not made out because the conduct of Network Ten and Wilkinson fell short of what would be required of reasonable journalists. His reasoning has again confirmed that a defendant who wishes to rely on this defence needs to have taken an approach to verifying that story that satisfies a judge. This sets a high standard that might not be achieved when facing the pressures of media deadlines.

Other cases

The highly publicised defamation claims by Ben Roberts-Smith against Fairfax Media, The Age, and the Federal Capital Press Limited are further examples of a plaintiff miscalculating the benefit of commencing defamation proceedings in the wake of serious allegations concerning criminal conduct. Robert-Smith sued the media outlets for defamation that he alleged conveyed him as a murderer, criminal and perpetrator of domestic violence. As in the Lehrmann case, the media outlets were successful in their defence of justification and contextual truth as they were able to establish, on the balance of probabilities (the civil standard of proof), that the imputations were substantially true.

Similar proceedings have been commenced by orthopaedic surgeon, Dr Al Muderis, against Nine Network Australia, Fairfax Media and The Age in the Federal Court for a series of news reports he claims ruined his reputation. The trial has now been running for many months and it remains to be seen whether the criticism of his medical competence will be established, or whether the media will face very significant damages.

But not all plaintiffs fail. In the case of Greiss v Seven Network (2024) FCA, Mr Greiss brought a claim against Seven alleging that he was defamed by the broadcaster in an online article which stated he ‘spat towards’ the alleged rape victim of rugby footballer Jarryd Hayne. To succeed, Seven had to establish the substantial truth of the imputations: Mr Greiss stared down at the victim and Mr Greiss spat at, towards or in the direction of the victim. The Court was persuaded that Mr Greiss spat towards the victim but was not persuaded that he stared her down. It followed that the substantial truth of the imputations were not made out and the justification defence failed. However, Seven was successful in its contextual truth defence under s26 for two additional imputations and its defence of honest opinion under s31 in relation to one imputation.

Lessons learned

As Justice Lee observed, “having escaped the lion’s den, Mr Lehrmann made the mistake of going back for his hat”. It serves as a stark reminder to plaintiffs of the inherent risks in bringing defamation litigation, particularly those that concern alleged criminal conduct. While the cause of action of defamation is intended to vindicate alleged victims who have suffered reputational harm, as with any judgment, the findings might be more damaging than the alleged reputational harm complained of. The fallout being that they may not only lose their case, but they may also lose their ability to qualify the conduct with “alleged” or “allegedly” and confirm the very alleged defamatory imputations they fought so hard to deny.

Lehrmann’s case highlights the irony of defamation litigation, which is intended to remedy an injured reputation. A plaintiff can cause further harm to their reputation if their action is unsuccessful, and they could also be exposed to further investigation by other authorities. This underscores the need for lawyers to undertake an evaluation of the risk in commencing defamation proceedings and discuss with their clients the further harm this might cause their client’s reputation.